Worrall v Antoniadou

In medical negligence, liability for a patient’s misunderstanding depends on an objective assessment of what the doctor said or did. A doctor is not liable merely because a patient derives an impression from a non-committal answer. Liability requires responsibility for the misunderstanding, or knowledge or constructive knowledge of it coupled with a failure to correct it. Liability cannot be based on an allegation that was neither pleaded nor put to the defendant. A doctor is not required to provide an inherently unpredictable timescale. Where the evidence establishes that the timing of later surgery cannot be predicted, advice that it will be needed at some point may be sufficiently clear. The appeal was allowed and the claim dismissed.

The claimant underwent breast augmentation surgery performed by the defendant consultant plastic surgeon. She alleged that the defendant had advised her that mastopexy would not be required for five to ten years. The County Court rejected that allegation but found that the claimant had left the consultation with the impression that she had at least five years before mastopexy was needed, and held that the defendant had negligently failed to dispel it. Damages of £14,378.47 were awarded. The defendant appealed, challenging the factual findings, the legal basis of negligence, and the refusal of the claim to be dismissed. The central issue was whether the defendant could be liable for an impression that she had not expressly created and did not know, or have reason to know, the claimant held.

1. Disposition. Tomlinson LJ allowed the appeal and dismissed the claim. David Richards LJ agreed. No retrial was ordered.
2. Objective assessment. The relevant question was whether anything said or done by the defendant would have been reasonably understood by a reasonable patient in the claimant’s position as an assurance that mastopexy would not be required for approximately five to ten years. A medical professional is not ordinarily liable for a patient’s misunderstanding unless the professional caused it, or knew or ought reasonably to have known of the misunderstanding and failed to dispel it.
3. Evidence and pleading. The trial judge had effectively found negligence on a basis that was neither pleaded nor fairly put to the defendant. There was no evidence supporting the conclusion that the claimant had introduced the five-to-ten-year timescale in a way that should have made the defendant appreciate the alleged misunderstanding. The judge also gave excessive weight to a later reference to five years. The inference that the consultation was rushed was unjustified in light of the unchallenged evidence about the defendant’s consultations.
4. Medical advice. The court recognised the general duties described in Montgomery v Lanarkshire Health Board (General Medical Council Intervening) [2015] AC 1430 and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871. However, both experts agreed that the timing of mastopexy could not be predicted accurately. Advice that mastopexy would be required sooner or later was therefore as clear as the defendant could reasonably make it. She was not under a duty to provide information that could not properly be given.
5. Causation and final order. The causation finding rested on the rejected premise that negligent advice had been given and therefore could not sustain the judgment. The claimant had failed to prove her pleaded case. The procedural comparison relied on in Faunch v O’Donoghue [2013] EWCA Civ 1698 did not justify a retrial on these facts.

1. Court of Appeal (Civil Division): On 6 December 2016, the appeal was allowed and the claim dismissed.
2. Bradford County Court: On 5 June 2015, His Honour Judge Davey QC awarded the claimant damages of £14,378.47.