Malcolm Richard Snow v Royal United Hospitals Bath NHS Foundation Trust

Informed consent for a novel surgical procedure requires disclosure of material risks, reasonable alternatives and any material uncertainty about safety and efficacy. Where relevant guidance requires enhanced governance, consent, audit, training, supervision, mentoring and documented patient selection, those requirements form part of the proper clinical process. Departure from NICE guidance is not automatically negligent, but ordinarily requires explanation.

In causation, the claimant must prove what decision would have been made with proper consent and must establish the injury actually caused, rather than merely an increased risk or general deterioration. Damages for multiple injuries should be assessed individually and then adjusted to avoid double recovery and reflect their combined effect.

The claimant underwent a transanal total mesorectal excision for rectal cancer at the defendant NHS hospital. The defendant admitted that the claimant had not been adequately informed of material risks, including urinary and sexual dysfunction and anterior resection syndrome, but disputed causation and liability for the surgical technique.

The claimant alleged that he should have been told about the limited evidence concerning TaTME, the surgeons’ early position on the learning curve, the absence of appropriate alternatives and the relevant risks identified by NICE. He contended that, if properly advised, he would have chosen conventional laparoscopic TME. He also alleged negligent governance, inadequate supervision and mentoring, wrong-plane surgery and injury from transanal instrumentation.

The issues included factual causation, medical causation, the extent of recoverable injury and the appropriate assessment of damages.

1. Liability and governance. The defendant’s introduction of TaTME was negligent. It failed to demonstrate special arrangements for governance, consent, audit or research; adequate training, mentoring and supervision; documented patient selection; an adequate multidisciplinary team record; and a sufficient operation note. The operation should have been postponed to permit proper consent.
2. Consent. The claimant should have been told that the evidence concerning TaTME’s safety and efficacy was limited and uncertain, provided with the relevant NICE public guidance, informed of the surgeons’ limited experience, offered conventional open and laparoscopic TME as alternatives, and warned of the material risks identified by NICE. Departures from NICE guidance required explanation, which the defendant failed to provide: [2019] PIQR P14.
3. Factual causation. On the balance of probabilities, proper advice would have led the claimant to choose laparoscopic TME. The defendant failed to prove that TME would probably have required conversion to abdomino-perineal excision or a permanent colostomy.
4. Medical causation. The surgeons were performing only their second TaTME, without mentoring or supervision. The claimant’s multiple pelvic nerve injuries, causing permanent impotence, loss of ejaculation and orgasm, and urinary urgency and incontinence, were most probably caused by repeated wrong-plane dissection. Reasonably competent colorectal surgeons should identify and preserve the pelvic autonomic nerves. The internal anal sphincter fragmentation was caused by transanal instrumentation and materially increased faecal incontinence.
5. The claimant failed to prove a measurable worsening of LARS attributable to TaTME, although he would have suffered major LARS after conventional TME in any event. The court applied the requirement to prove actual damage rather than merely increased risk: [1998] Lloyds Rep (Med) 104.
6. In assessing PSLA, the court assessed the component injuries and then stood back to account for overlap and their combined effect, following Sadler v Filipiak [2011] EWCA Civ 1728. Judgment was entered for the claimant in the total sum of £298,616.73, including interest and future losses.