Price v Cwm Taf University Health Board

On an appeal against findings of fact, the appellate court must ask whether the trial judge erred, not whether it would have reached a different conclusion. A finding should be overturned only where no reasonable judge could have reached it, ordinarily because there was no supporting evidence or the evidence was plainly misunderstood.

Clinical guidance does not replace the individual responsibility of a healthcare professional to decide what is appropriate for the patient. Departure from NICE guidance will ordinarily require explanation, but is not itself prima facie evidence of negligence. Informed consent is concerned with personal autonomy and may be vitiated where a patient is subjected to a pointless procedure without being informed that it has no benefit. Whether consent was informed remains fact-sensitive.

Mr Price appealed from the dismissal by HHJ Petts of his medical negligence claim arising from three operations on his right knee. Permission to appeal was refused on the first operation. The appeal concerned the decision to perform the second arthroscopy and the trial judge’s findings on the alignment of the prosthesis used in the third operation.

The central issues were whether the second operation was negligent because it departed from NICE guidance or was inadequately consented to, and whether the trial judge had made an appealable error in rejecting a composite long-leg X-ray as reliable evidence of prosthetic misalignment.

1. Appeal dismissed. Both grounds challenged findings of fact. The question was whether the trial judge had erred, not what the appellate judge would have found. Applying the principles summarised in Wheeldon v Millenium Insurance Co Ltd [2018] EWCA 2403, a finding of fact should ordinarily be overturned only where no reasonable judge could have reached it, usually because there was no evidence to support it or the evidence was plainly misunderstood.
2. The second arthroscopy was within a reasonable body of orthopaedic practice on the expert evidence accepted by the trial judge. NICE guidance stated that arthroscopy should not be offered for osteoarthritis unless there was a clear history of mechanical locking, but also preserved the individual clinician’s responsibility to make appropriate decisions for the particular patient. Departure from the guidance was not prima facie evidence of negligence. It was likely to call for an explanation, and the departure was adequately explained and justified here.
3. The consent challenge failed. The trial judge was entitled to find that the operation had potential benefits and that the omission of those benefits from the consent form was an error rather than evidence that the procedure had no purpose. The requirement of informed consent reflects personal autonomy and is not confined to warnings about physical harm. However, the alleged failure to refer expressly to NICE guidance did not, on these facts, infringe autonomy or vitiate consent. A public law duty to explain departure from guidance could not be transposed into the clinical consent process by analogy.
4. In relation to the third operation, the trial judge was entitled to reject the long-leg image. It did not comply with the manufacturer’s radiographic criteria, the scientific literature supported the judge’s assessment of its limited value, and rotation made reliable measurement difficult. The judge had evidence supporting that conclusion and had not materially misunderstood the radiological evidence. Once the long-leg image was excluded, the appellant could not establish negligent misalignment. It was therefore unnecessary to determine the further challenge to the judge’s reasoning based on the 1 May 2012 image.

• High Court (Queen’s Bench Division): Appeal from the order of HHJ Petts dated 31 August 2018 dismissing the medical negligence claim. The appeal was dismissed.