Julia Tosh v Vivek Gupta

In a clinical-negligence claim, a surgeon’s clinical judgment is assessed under the professional practice test, subject to the requirement that the supporting opinion has a logical and defensible basis. The duty to advise a patient requires reasonable care to explain material risks and reasonable alternative treatments. The range of reasonable alternatives may itself involve clinical judgment.

Where the claimant’s account of what would have been decided is affected by hindsight, the court should assess it subjectively but test it against contemporaneous documents, objective facts, overall probabilities and the circumstances of the patient. A written information leaflet, oral advice and the consent process may collectively establish adequate advice. The claim was dismissed because breach and causation were not proved.

The claimant underwent a ligasure haemorrhoidectomy performed by the defendant and subsequently developed anal stenosis. She alleged that the defendant had incorrectly graded her haemorrhoids, had failed to advise her of reasonable non-surgical alternatives, and had failed adequately to explain the risks and benefits of surgery, including anal stenosis. She argued that, with proper advice, she would have chosen non-surgical treatment.

The defendant denied breach and causation. The trial concerned liability and causation. The central issues were whether the haemorrhoids had been correctly graded, whether the advice and consent process complied with the applicable clinical-negligence principles, and whether the claimant had proved that she would have chosen differently.

1. Liability. The claim was dismissed. The claimant had not proved that the defendant incorrectly graded her haemorrhoids as Grade 2/3. The grading was based on a history and examination and represented a practice accepted as proper by a responsible body of consultant colorectal surgeons with a logical basis, applying Hunter v Hanley, Bolam v Friern Hospital Management Committee and Bolitho v Hackney HA.
2. The court accepted that the contemporaneous records, the claimant’s history, the defendant’s usual practice and the operation findings supported the grading. The absence of detailed recording did not establish that the relevant history had not been taken.
3. Consent and alternatives. The defendant had taken reasonable care to ensure that the claimant was aware of material risks and reasonable alternative treatments, as required by Montgomery v Lanarkshire Health Board and McCulloch v Forth Valley Health Board. The court considered the oral discussion, the EIDO leaflet, which the claimant read, and the consent process on the day of surgery together.
4. For Grade 3 or 4 haemorrhoids, surgery was the definitive treatment, but non-surgical options still required discussion. The wording of the defendant’s letter, the leaflet and the consent form supported the finding that those options and the risks, including anal stenosis, had been discussed. The defendant was not required to warn of the exceptionally rare and severe consequences which in fact occurred.
5. Causation. It was unnecessary to decide causation because breach had not been established. The court nevertheless observed that the claimant’s evidence that she would have chosen differently was materially affected by hindsight and was unsupported by extraneous or additional factors. If non-surgical treatment had first been chosen, the agreed position was that surgery would probably have followed within two years, limiting any damages to acceleration of symptoms.

The claim was dismissed. Consequential orders were to be agreed, failing which they would be determined by the court.