Birch v University College London Hospital NHS Foundation Trust

In a clinical negligence claim, a responsible body of medical opinion will generally satisfy the Bolam standard where its approach can withstand logical analysis. A court should not choose between competing practices merely because it prefers one assessment of risks and benefits. Separately, the duty to obtain informed consent may require disclosure of comparative risks where alternative procedures are available and materially different in their risks, benefits and diagnostic capabilities. In such special circumstances, disclosure of the risk of the chosen procedure alone is insufficient. The patient must receive a fair and balanced explanation enabling an informed choice. Failure to provide that information may constitute a breach of duty even where the medical decision to select the procedure was not negligent.

Janet Birch suffered a stroke after undergoing catheter angiography at the defendant’s National Hospital for Neurology and Neurosurgery, Queen Square. The investigation had been undertaken urgently to exclude a posterior communicating artery aneurysm. The claimant alleged that the decision to use catheter angiography rather than MRI was negligent and that her consent was inadequately obtained.

The court considered the competing diagnostic methods, the relevant medical evidence, the application of the Bolam and Bolitho principles, and whether the defendant had to disclose the comparative risks of catheter angiography and MRI. Quantum had been agreed.

1. Negligence. The Queen Square neurosurgeons were entitled to make their own investigation plan. They had considered the claimant’s history and presentation and were entitled to focus urgently on excluding an aneurysm, notwithstanding that diabetic ischaemia was the most likely diagnosis and cavernous sinus pathology was another possibility.
2. The decision to use catheter angiography was supported by a responsible body of neurosurgical opinion. The evidence showed no professional consensus in 2003 favouring MRI over catheter angiography. The Queen Square approach could withstand logical analysis. The court was not entitled to prefer the claimant’s risk-benefit assessment where both competing approaches were professionally supported and logically defensible. There was therefore no negligence in selecting catheter angiography rather than MRI.
3. Consent. The claimant was informed of the approximate one per cent risk of stroke from catheter angiography. In the special circumstances, that was insufficient. Two procedures were open to her; MRI was non-invasive, could investigate both an aneurysm and cavernous sinus pathology, and carried no risk of stroke, while catheter angiography was more sensitive for aneurysms but could not detect cavernous sinus pathology and carried a small stroke risk increased by her background.
4. The duty to disclose significant risks therefore included disclosure of the comparative risks, advantages and limitations of the two imaging methods. The defendant accepted that this information had not been given. The omission breached the duty to obtain informed consent. The reasoning was supported both by the significant-risk principle in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 and by the emphasis on patient autonomy in Chester v Afshar [2004] UKHL 41.
5. Causation and order. On the balance of probabilities, the claimant would have chosen MRI if given a fair and balanced explanation. She would therefore have avoided the catheter angiography and the resulting stroke. Judgment was entered for the claimant on liability. Quantum had been agreed at £621,000.