Sidra Bilal & Anor v St George's University Hospital NHS Foundation Trust

In a clinical-negligence claim, an appellate court will not ordinarily entertain an allegation that was neither pleaded nor put to the relevant clinician, particularly where expert evidence is required. A clinician’s assessment of reasonable treatment options is governed by the Bolam approach, while disclosure of material risks and reasonable alternatives is governed by Montgomery. The clinician assesses which alternatives are reasonable; the court assesses materiality from the patient’s perspective. Causation still depends on the evidence about what properly informed advice would have caused the patient to do. The appeal was dismissed.

Mr Malik brought a clinical-negligence claim after revision thoracic and lumbar decompression surgery resulted in spinal cord injury, paraparesis and lifelong wheelchair dependence. His children, acting as administrators of his estate, appealed after HHJ Blair KC dismissed the claim in the High Court.

The appeal challenged the findings that revision surgery was reasonable, that no reasonable alternative treatment had been omitted from the advice, and that informed consent and causation were established. The principal issue was whether the failure to ask about the duration of the intercostal pain could be relied upon when it had not been pleaded or put to the surgeon in cross-examination.

The Court of Appeal unanimously dismissed the appeal. Lady Justice Nicola Davies gave the judgment, with Lord Justice Coulson and Lady Justice King agreeing.

1. Unpleaded allegation. The allegation that the surgeon negligently failed to ask how long the intercostal pain had been present was not pleaded, was not addressed in the experts’ reports or joint statement, and was not put to the surgeon in cross-examination. Pleadings are essential to a fair trial, especially in clinical-negligence claims dependent on expert evidence. The judge was therefore correct to treat the allegation as a new departure and not properly before the court ([43]–[55]).
2. Duration and adverse inference. The judge was entitled to find that the pain had been present for no more than a couple of months and had not resolved by the date of surgery. The evidence indicated that it had preceded the consultation and that the surgery was undertaken to alleviate it. Applying the principles in Wisniewski v Central Manchester Health Authority [1998] PIQR, there was no basis for an adverse inference that the pain had lasted less than six weeks ([56]–[61]).
3. Treatment options and disclosure. Bolam [1957] 1 WLR 583 governs the professional assessment of treatment options and reasonable alternatives. That assessment is distinct from the duty under Montgomery v Lanarkshire Health Board [2015] UKSC 11 to explain material risks and reasonable alternative or variant treatments. The doctor assesses what alternatives are reasonable by reference to professional standards; the court assesses materiality from the patient’s perspective. The judge correctly applied that distinction ([63]–[66]).
4. Application. The neurosurgical evidence supported the finding that analgesia and other proposed options had been exhausted or were not reasonable alternatives in the circumstances. It was therefore open to the judge to conclude that offering revision surgery was reasonable and that no breach arose from failing to discuss injections or a long-term pain-management strategy.
5. Causation. The evidence did not establish that properly informed advice would have led Mr Malik to reject, defer or seek a second opinion about surgery. His expressed wish was for prompt surgery to relieve severe pain. The approach in Chester v Afshar [2004] UKHL 41 did not provide a basis for overcoming the evidential failure on causation ([67]–[68]).

• Court of Appeal (Civil Division) — Appeal dismissed. The judgment was given by Lady Justice Nicola Davies, with Lord Justice Coulson and Lady Justice King agreeing: [2023] EWCA Civ 605.
• High Court of Justice, King's Bench Division — HHJ Blair KC dismissed the personal-injury claim arising from the spinal surgery.