Spencer v Hillingdon Hospital NHS Trust

In clinical negligence concerning post-operative advice, the duty is not confined to warnings about risks relevant to consent. A hospital may also have to give practical information about recognisable symptoms of a rare but serious complication, and the need for urgent medical attention.

The court should consider what an ordinary sensible patient would expect to be told, while taking account of responsible medical practice. NICE guidance is not determinative of negligence, but may be highly relevant. A failure to provide simple advice about symptoms that could enable early treatment may constitute breach even where the underlying risk is remote.

The claimant developed deep vein thrombosis and pulmonary emboli after day-case bilateral inguinal hernia surgery. He alleged that hospital staff negligently failed to warn him before discharge about the symptoms of those conditions and the need to seek medical assistance.

The defendant accepted that earlier medical treatment would have prevented the acute pulmonary embolism episodes, but disputed breach, causation in fact and contributory negligence. The agreed damages, subject to liability and contributory negligence, were £17,500.

1. Judgment for the claimant. The defendant was liable for breach of its duty of care. The agreed damages were £17,500.
2. The court considered the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 and Bolitho v City and Hackney Health Authority [1998] A.C. 232. The relevant standard required assessment of responsible medical practice, but the court also had regard to what the ordinary sensible patient would expect to have been told.
3. In light of Montgomery v Lanarkshire Health Board [2015] UKSC 11, the judge treated the patient’s perspective as relevant to the significance of information. The ratio of Montgomery was confined to information needed for a patient to decide whether to undergo treatment, but its basic principles were considered capable of application to other advice given by medical and nursing staff.
4. The NICE guidance was not wholly clear as to the patients who should receive discharge information. The better interpretation was that information about symptoms of deep vein thrombosis and pulmonary embolism should generally be given to patients within the covered groups, except where no risk could possibly arise. Compliance with the guidance was not determinative of negligence, but was highly relevant.
5. The information was simple and practical. It concerned symptoms of potentially fatal conditions which could be successfully treated if diagnosed early. The court found that an ordinary sensible patient would expect to receive it and would be justifiably aggrieved if it were withheld. Modern, safe and responsible practice required such advice for patients undergoing general anaesthesia.
6. The claimant would probably have sought medical advice if warned. His failure to associate calf symptoms with the operation was understandable because the symptoms arose days later, away from the operation site, and appeared attributable to inactivity. He was not contributorily negligent.