Ecclestone v Medway NHS Foundation Trust

In medical negligence claims, compliance with a responsible body of professional opinion does not automatically determine the standard of care. The court must consider whether that opinion has a logical basis, including proper consideration of comparative risks and benefits. It is not enough that another respectable professional opinion would have adopted a different treatment.

Where two surgical techniques are each supported by experienced practitioners and can be logically supported, choosing one rather than the other is not negligent merely because the court might prefer the alternative. Post-operative arrangements are judged by whether they are reasonable and accepted by a responsible body of medical practitioners, rather than by whether unlimited access to the treating team would represent optimal care.

The claimant brought a personal injury claim against the defendant NHS Foundation Trust arising from a left knee arthroscopy and lateral release performed at the defendant’s hospital. He alleged that the surgeon negligently used a percutaneous rather than an arthroscopic technique, causing a haemarthrosis, and that the defendant negligently transferred responsibility for post-operative care to his general practitioner after 24 hours.

The defendant denied negligence. The central issues were whether the surgical technique and follow-up arrangements satisfied the applicable professional standard, and, if not, whether the alleged breaches caused the claimant’s subsequent pain and disability.

1. Surgical technique. The applicable standard was that of the reasonable knee surgeon possessing the necessary skill. Applying Bolam v Friern Hospital Management Committee and its qualification in Bolitho v City and Hackney Health Authority, the court found that a responsible body of orthopaedic surgeons used the percutaneous technique in 2008. Its inclusion in leading orthopaedic textbooks provided further support.
2. The percutaneous technique was blind and carried a recognised risk of haemarthrosis, but it also had potential advantages, including avoiding deliberate division of the capsule and synovium. The arthroscopic technique did not eliminate the risk of haemarthrosis and had its own disadvantages. The professional opinion supporting the percutaneous technique had a logical basis and had appropriately weighed risks and benefits. The claimant had therefore failed to prove negligent surgical treatment. The court emphasised, consistently with Maynard v West Midlands Regional Health Authority, that preferring one logically supportable body of professional opinion over another does not establish negligence.
3. Post-operative care. Referral to the general practitioner after 24 hours was standard NHS practice and routinely applied to lateral release procedures. Although direct and continuing access to the surgical team might have constituted optimal care, the legal test required reasonable arrangements recognised and accepted by a responsible body of medical practitioners. The defendant was not negligent.
4. The claim was dismissed and judgment was entered for the defendant. The court stated, obiter, that if negligence had been established, the haemarthrosis and delay would have accelerated the claimant’s pre-existing pain and disability by two years, limiting compensation accordingly.