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The nature of doctors’ duties in advising and obtaining consent to medical treatment changed with the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11. Since then, there has been a succession of claims. Alongside obstetrics, spinal surgery has been the most common area.
The case of Hassell v Hillingdon Hospitals NHS Foundation Trust was a successful claim by a patient given inadequate advice about the risks of spinal surgery and alternative treatments. Mrs Hassell suffered an injury to her spinal cord during surgery and was seriously disabled, with tetraparesis (weakness of all four limbs). She recovered damages of £4.4 million.
Mrs Hassell was 41 when she underwent surgery to her neck in 2011. She worked full-time as a secondary school teacher and was head of years 7,8 and 9. She had three children.
Mrs Hassell had undergone two previous operations – decompression of her lumbar spine in 2009 and a hip arthroscopy in 2011. Mr Ridgeway was her spinal surgeon. He had not included injury to the spinal cord among the risks of the 2009 operation. The procedure was partially successful – it reduced her back pain but not her leg and foot pain.
Before the 2011 hip operation, Mrs Hassell saw Mr Ridgeway again. During this appointment, she complained about the first time of left arm pain. Her arm strength was reduced and this, together with her pain, made driving difficult. She had an MRI scan which suggested some abnormalities at C5/6 and impingement on the spinal cord.
On 28 June 2011, she saw Mr Ridgeway again. This proved to be a significant consultation for the subsequent claim. She described neck pain radiating down the C6 nerve distribution. Mr Ridgeway said he could perform an anterior cervical discectomy. Depending on the findings, he may need to fuse the C5 and C6 vertebrae or replace the disc. Surgeon and patient had different recollections of the discussion. In particular, they differed over what Mr Ridgeway said about the risks of surgery and what alternative conservative treatments were possible.
On 27 July 2011, Mrs Hassell attended a pre-operative clinic. On the records, a box was ticked, indicating “no limitation of physical activity”. There was a further comment added: “limited by back/neck problems only”. The words “very limited neck movement – hence planned op!” were written beside the airway assessment.
On 3 October 2011, the day of surgery, Mrs Hassell signed a consent form. This recorded risks, including “cord injury”. However, Mrs Hassell said that at this stage everything seemed to be done in a rush. She had been told there would be some delay before her operation and her husband was elsewhere when Mr Ridgeway arrived with a porter to take her to surgery. She was not able to say goodbye to her husband. She felt nervous. As the court later found, Mrs Hassell’s mind was not on the consent form when she signed it.
Unfortunately, for some unknown reason, she suffered a serious injury during surgery. Her spinal cord was damaged, and she was left severely disabled.
Mrs Hassell brought a claim in negligence against Hillingdon Hospital NHS Foundation Trust in relation to her surgery. Her claim was that Mr Ridgeway had inadequately advised her, both by failing to warn her of the risk of cord damage and by failing to offer alternative forms of treatment. In her case, she would not have run the risk of cord damage if she had been adequately advised. She also alleged that the operation had been negligently performed.
The parties agreed that, if she established liability, damages would amount to £4.4 million. The issue of liability was tried before Mr Justice Dingemans between 15 and 23 January 2018. His decision was reported on 6 February 2018.
Mr Justice Dingemans was not persuaded that Mr Ridgeway had been negligent in his conduct of surgery. The cause of the cord injury was unclear but there was no evidence of any failing by the surgeon. However, his advice had been inadequate, and Mrs Hassell had not therefore given informed consent. With correct advice she would have declined surgery.
There was a conflict of evidence about the advice Mrs Hassell was given. Her evidence was that Mr Ridgeway had not advised her of alternatives such as painkilling medication or physiotherapy. He discussed anaesthetic risks, infection and the possibility of having a hoarse voice for a couple of weeks – a risk he put at 1 in 1,000. This concerned her, because, in her work context, Mrs Hassell might need to shout across the playground. Mr Ridgeway failed to mention risks from deep vein thrombosis, pulmonary embolism, nerve damage, cord damage or paralysis. In her view, she would have been sufficiently concerned at a risk of cord injury of 1 in 1,000 to have elected for alternative treatment.
Mr Ridgeway’s account was different. He thought he had discussed alternative treatments, but Mrs Hassell rejected them – they had been unsuccessful. Mr Ridgeway thought she had previously had physiotherapy to her neck, although this was incorrect – her past physiotherapy had been for her back. Mr Ridgeway said that he had put the risk of hoarseness at 2 in 100 (and not 1 in 1,000 as she said) and of paralysis at between 1 in 500 and 1 in 10,000. He said he suggested patients carry out research and look at his website where they would find “all the relevant information to enable them to fully understand the risks and benefits of the planned procedure”. However, there was nothing on Mr Ridgeway’s website about the risk of paralysis.
In Mrs Hassell’s presence, Mr Ridgeway dictated a letter summarising the consultation. His letter gave the risk of a hoarse voice as 1 in 1,000. There was no mention of paralysis. He thought this must reflect a transcription error because 1 in 1,000 was the figure for the risk of paralysis and not a hoarse voice. Unlike previous letters, it was not marked “cc patient” and there was no evidence that Mrs Hassell had seen it before the operation (and she could not remember doing so).
The judge found that Mrs Hassell had not been warned of the risk of cord injury causing paralysis and that there had been no discussion of alternative treatment options. The surgeon’s duty (as per Montgomery) was to take reasonable care to ensure Mrs Hassell was aware of the material risks of surgery and alternative treatment options. He had breached that duty.
Mr Ridgeway gave a number of reasons.
1. The surgeon wrongly thought Mrs Hassell had previously undergone physiotherapy to her neck. Montgomery required an adequate dialogue between doctor and patient. Had there been such a dialogue, he would have discovered she had not had physiotherapy.
2. However good a surgeon Mr Ridgeway may have been, he did not communicate the surgical risks well. His evidence at trial was inconsistent with his statement when it came to what advice he normally gave.
3. Mrs Hassell’s evidence that she had not been warned was clear and persuasive. Research suggests patients do not always recall advice about risks accurately. However, her memory was clear. Mrs Hassell had particular concerns about the risk of a hoarse voice given her work. The risk of paralysis would have given her greater concern.
4. In a letter written sometime after surgery, Mr Ridgeway had said he had explained the risks of paralysis from surgery, as with his advice about the previous spinal surgery. However, Mr Ridgeway’s letter warning of risks from the lower spine operation in 2009 did not mention paralysis.
5. Mr Ridgeway’s website, to which he referred patients for “all the relevant information”, did not warn of paralysis.
6. The letter dictated in Mrs Hassell’s presence on 26 June 2011 failed to mention the paralysis and had probably not been sent to her.
Mrs Hassell had of course been told of the risk of “cord damage” on the day of surgery. This was not enough. The warning was given shortly before the operation when she was feeling nervous and her mind was not engaged on the consent form.
The judge found that, had she been properly advised, Mrs Hassell would have chosen not to have surgery. Although she had in the past been prepared to run the risk of surgery, she had expressed concern at the risk of having a hoarse voice. This was a risk she was prepared to run. It did not follow that she would have disregarded the risk of cord injury and of consequent disability. This was a more serious risk. She had also had a good experience of conservative treatment in the form of osteotomy in the past. At the time of her operation in 2011, Mrs Hassell was 41 and had children to look after. The risk of paralysis would have been a frightening one. She was capable of assessing risk and that is a risk she would not have run.
Hassell v Hillingdon Hospitals NHS Foundation Trust is one of a number of decisions in the wake of Montgomery v Lanarkshire Health Board. Montgomery established that doctors are under a duty to take reasonable care in ensuring that patients are aware of the material risks of any recommended treatment and of reasonable alternative treatments. A risk is material if “in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.
Patients are therefore entitled to be given a choice. It is not enough to recommend surgery and advise of the risks. There will always be alternatives, even if the only alternative is no treatment. Here there were alternatives in the form of conservative management with painkillers or physiotherapy. As in Thefaut v Johnston [2017] EWHC 497, one of the surgeon’s failings was not advising about alternatives.
Warnings on the day of surgery may well be too late for patients to give informed consent. Jones v Royal Devon and Exeter NHS Trust is another case where a patient was not given material information until shortly before the operation itself. By then it was too late for the patient to make a proper decision.
Spinal surgery cases appear to be a particular area of risk. Spinal surgery is second only to obstetrics in medicine in generating the largest number of successful consent claims.
Finally, consent cases differ from most clinical negligence claims in that the witness evidence of the patient and treating doctor are crucial to the outcome. What advice was actually given is a key issue – it is a matter of fact. Most other clinical negligence cases turn more on expert evidence rather than evidence of fact.
