Philippa Caroline Deakin-Stephenson v Nebil Behar

In a clinical negligence claim, the court held that a doctor may satisfy the duty concerning reasonable alternative treatments by offering options supported by a responsible body of professional opinion. The materiality of a risk depends on the circumstances of the particular patient. A failure to record advice adequately does not necessarily establish that the advice was not given.

Where a patient is clinically stable, a short delay may be reasonable if it allows the patient time to consider treatment, provided the delay is consistent with professional practice. A claimant must prove each alleged breach and causative consequence on the balance of probabilities. The claims against the surgeon and hospital trust were dismissed.

The claimant developed perforated diverticulitis while being treated at Chelsea and Westminster Hospital. She underwent laparoscopic lavage on 7 November 2016 and an emergency Hartmann’s procedure after deterioration on 9 November 2016.

She alleged that the surgeon failed to arrange a colorectal referral, induced her transfer to private care, failed to offer or explain a Hartmann’s procedure and its risks, delayed surgery, and caused her subsequent injuries. She also alleged vicarious liability and systemic negligence against the Trust.

The central issues were whether the alleged breaches occurred, whether any breach caused injury, and whether the Trust was liable for treatment after the claimant’s transfer to private care.

1. Claims dismissed. The claimant failed to prove any breach of duty by the first defendant or any breach of duty or vicarious liability by the Trust.
2. Standard of care. The court applied the professional practice test in Bolam v Friern Hospital Management Committee and held that laparoscopic lavage was a reasonable alternative or variant treatment supported by a responsible body of surgeons. The fact that the claimant’s expert would personally have preferred a Hartmann’s procedure did not establish negligence.
3. Consent. Applying Montgomery v Lanarkshire Health Board, the court found that the claimant was offered both a stand-alone Hartmann’s procedure and laparoscopic lavage with conversion to a Hartmann’s procedure if clinically necessary. The options and material risks were discussed during lengthy consultations. The consent form recorded the risks inadequately, but that was a recording failure rather than proof that the advice had not been given.
4. Delay. The claimant was clinically stable and the short delay from Sunday night to Monday morning allowed her to consider her strong aversion to a stoma. The delay was reasonable and consistent with the expert evidence and applicable professional guidance.
5. Referral and causation. The alleged requests for referral to a colorectal surgeon were not proved. In any event, the evidence established that the first defendant was competent and experienced in colorectal surgery and that his management was materially the same as that of a specialist colorectal surgeon until the relevant decision on treatment. The claimant also failed to prove that she would have chosen a Hartmann’s procedure if offered alongside lavage.
6. Trust liability. The claimant was treated as a private patient after transfer to the Chelsea Wing. The evidence did not establish that the Trust was vicariously liable for the surgeon’s subsequent acts or that it lacked an adequate referral or treatment policy.