Crossman v St George's Healthcare NHS Trust

In a clinical negligence claim, a patient’s failure to question a hospital’s departure from an agreed treatment plan does not necessarily amount to contributory fault or break the chain of causation. The court must assess the patient’s position in the context of the doctor-patient relationship.

Conventional but for causation is established where negligent implementation of a treatment plan caused surgery to occur earlier and the injury was, on the balance of probabilities, unlikely to have occurred had surgery taken place later. The exceptional modification of causation principles in Chester v Afshar is narrowly confined. It does not generally apply where the patient was properly warned of the surgical risks and the complaint concerns only the timing of surgery.

The claimant suffered a nerve-root injury during cervical spinal surgery performed at the defendant hospital. The surgeon had initially recommended conservative treatment and a review after three months, with surgery only if symptoms persisted. Through admitted negligence, the claimant was placed on the surgical waiting list and underwent surgery approximately three months earlier than planned.

The claimant accepted that the surgical risks had been explained. The parties agreed that the same surgery would probably have been undertaken later and that the risk would have been the same. The issues were whether the claimant was at fault for failing to question the change of plan, whether the injury was caused on conventional principles, and whether the exceptional approach in Chester v Afshar applied.

1. Judgment for the claimant. The claimant was awarded the agreed damages of £92,500.
2. The claimant was not at fault for failing to question the hospital’s departure from the agreed conservative-treatment plan. The hospital’s letters and subsequent telephone advice reasonably led him to believe that surgery had been arranged. The doctor-patient relationship must be assessed realistically, having regard to the patient’s dependence on medical advice and the intimidating nature of clinical settings. The claimant’s failure to raise the issue therefore did not absolve the hospital or break the chain of causation. The court relied on the approach in Montgomery v Lanarkshire Health Board.
3. On the medical evidence, the claimant was unlucky to suffer a complication whose risk was very small. The evidence did not establish that the injury was more likely than not to have occurred whenever the operation was performed. On the balance of probabilities, the operation would have been successful had it taken place three months later.
4. Accordingly, the admitted negligence was a factual cause of the injury on conventional but for principles. Without the negligence, the claimant would not have undergone surgery when he did, and the injury probably would not have occurred on the later occasion.
5. The court considered, but did not need to decide, the alternative claim based on Chester v Afshar. That decision was treated as an exceptional and limited modification of ordinary causation principles. It concerns circumstances such as failure to warn of material risks, which undermines informed consent, or failure to disclose in time a change in the identity of the surgeon. This case was different: the claimant was warned of the risks, knew the change in treatment plan, and was operated on by the surgeon he had consulted. Modification of ordinary causation principles was therefore not justified.

First-instance decision. The judgment itself does not state any prior appellate history.