Hassell v Hillingdon Hospitals NHS Foundation Trust

A doctor must take reasonable care to ensure that a patient understands material risks of proposed treatment and reasonable alternatives. The discussion must involve a comprehensible dialogue directed to the patient’s ability to make an informed decision. A warning given immediately before surgery may be insufficient where the patient has no real opportunity to consider it. In clinical negligence, proof that several possible causes have been excluded does not itself establish the remaining cause on the balance of probabilities. Where the evidence cannot identify the mechanism of an injury, causation is not proved by inference alone. A surgical practice is negligent only if it falls outside a responsible body of medical opinion or, in the exceptional case, cannot withstand logical analysis.

The claimant suffered permanent tetraparesis following a cervical discectomy and disc replacement performed by the defendant Trust’s spinal surgeon. She alleged that she had not been warned of the risk of paralysis or informed of reasonable conservative alternatives, and that the operation was performed negligently. The Trust disputed the consent evidence and maintained that the operation was carried out with reasonable care and skill.

Quantum was agreed at £4.4 million. The issues were informed consent, whether the claimant would have proceeded if properly informed, breach of the duty governing performance of the operation, and causation.

1. The claim succeeded. Judgment was entered for the claimant for the agreed sum of £4.4 million.
2. Applying Chester v Afshar [2004] UKHL 41 and Montgomery v Lanarkshire Health Board [2015] UKSC 11, the surgeon owed a duty to take reasonable care to ensure that the claimant understood the material risk of spinal cord injury causing paralysis and the reasonable alternatives, including physiotherapy and further injections. The duty required dialogue and comprehensible information.
3. The claimant had not been warned of paralysis during the June consultation. The warning of cord injury on the day of surgery was insufficient to obtain informed consent. The surgeon’s inconsistent evidence, the omission from the dictated letter, the absence of the risk from the website, and the claimant’s clear evidence supported that conclusion.
4. The claimant proved that, if properly informed, she would have chosen conservative treatment and would not have undergone the operation. The causation requirement in relation to the consent breach was therefore satisfied.
5. Applying Bolam v Friern Hospital Management [1957] 2 All ER 118, subject to the logical-analysis qualification in Bolitho v City and Hackney Health Authority [1998] AC 232, the surgeon had used reasonable care and skill. The evidence established that the diathermy was being used at the front of the disc to free the annulus, where its use was accepted as reasonable.
6. The medical evidence could not establish, on the balance of probabilities, what caused the spinal cord injury. Following O’Connor v Pennine Acute Hospitals NHS Trust, exclusion of other possible causes was insufficient without positive proof of the alleged cause. The operative-negligence claim therefore failed, but the informed-consent claim succeeded.

Not stated in the judgment.