NHS Trust to pay £4.4m for surgeon’s failure to warn about risks of spinal surgery

A High Court judge has ruled that the patient would not have gone ahead with the operation if the risks had been properly explained and therefore that Hillingdon Hospitals NHS Foundation Trust must compensate her.

Case synopsis

The Claimant, Mrs Tracy Hassell, was a 41 year old mother of three and head of year at a secondary school in October 2011 when she underwent a C5/6 decompression and disc replacement operation, performed by Mr Shaun Ridgeway, a Consultant Spinal Orthopaedic surgeon at Hillingdon Hospital, North London. During the operation, the Claimant suffered a spinal cord injury and became tetraplegic as a result.

Following the Supreme Court’s ruling in Montgomery v Lanarkshire Health Board [2015] UKSC 11, in order to obtain the informed consent needed before an operation, doctors are under a duty to take reasonable care to ensure that patients are aware of any material risks of the planned operation and any reasonable alternative treatment(s). The Claimant alleged that she was not told that the operation carried a risk of paralysis, and that alternative conservative treatments were not discussed with her prior to the operation. Her case was that if she had been told about the risk of paralysis, she would not have undergone the operation.

The Queen’s Bench Division of the High Court heard evidence from both the Claimant and Mr Ridgeway.

The Judgment

In his Judgment on 6 February 2018, Mr Justice Dingemans found that Mr Ridgeway failed “to take reasonable care and skill to ensure that the Claimant was aware of the material risks of the operation and the alternative conservative treatment options.” He provided 7 reasons for accepting the Claimant’s evidence that she had not been told about the risk of paralysis. These included:

• The Claimant was not told about the risk of paralysis as a result of spinal cord injury as a result of the cervical discectomy in her consultation with Mr Ridgeway on 28 June 2011, and she was not advised of conservative treatment options including physiotherapy and further injections.
• Despite Mr Ridgeway’s strengths as an operating surgeon, “he was not a good communicator about the risks of operations.”
• The Claimant gave clear evidence that she had not been warned about the risk of paralysis and that she would have been very concerned about that as the mother of 3 children in full-time work as head of year.
• There were inconsistencies between Mr Ridgeway’s oral evidence at trial and his earlier witness evidence.
• There were gaps in the Claimant’s contemporaneous written medical records and the website which the Claimant had been referred to in relation to risks did not contain sufficient information to allow her to fully understand the risks and benefits of the procedure.

Mr Justice Dingemans accepted that the consent form that the Claimant was asked to sign on the day of the operation referred to cord injury as a risk, however, the parties agreed that this warning on the day of the operation was not sufficient. Additionally, the Claimant had been moved up the list of operations on the day and it was apparent from her evidence that “she had not had a chance to say goodbye to her husband before the operation, and that her mind was not engaged on the consent form on the day.” He therefore concluded that Mrs Hassell did not give informed consent to the operation and that, had she been told of the risk of paralysis and conservative treatment options, she would not have had the operation on that day.

Mr Justice Dingemans did find that Mr Ridgeway had used reasonable care and skill in carrying out the operation and that he could not, on the balance of probabilities, determine what caused the Claimant’s spinal cord injury and paralysis.

The legal representatives for both sides had previously agreed to a figure of £4.4m in compensation in the event of the judge ruling in the Claimant’s favour.

What does this case mean for NHS Trusts?

This case illustrates the need for operating surgeons to understand the level of discussion with patients that is required under the Montgomery test and the need for any discussion of the risks of treatment to be documented clearly in the patient’s contemporaneous medical records. Follow up clinic letters to patients must likewise clearly state the risks which have been discussed and, if a patient is referred to websites for further information in relation to risks, care must be taken to ensure that these sources accurately detail the risks of the procedure in question and are regularly reviewed and updated.

The criticism of Mr Ridgway’s evidence in this case also demonstrates the importance of witnesses providing consistent evidence throughout a case.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with Jeffrey Keeble or a member of our healthcare team.