HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

In a clinical negligence claim, the professional practice test applies to surgical planning and the selection of treatment options. The court must assess whether the supporting professional opinion is logically defensible in the circumstances of the particular patient. Informed consent is governed by Montgomery: the patient must be told about material risks and reasonable alternative or variant treatments. Where a foreseeable risk of catastrophic injury is materially elevated, a risk-mitigation variant may itself require disclosure, even if surgeons would not ordinarily discuss its technical details. For complex, high-risk elective surgery, consent should ordinarily be discussed with the operating surgeon in an outpatient appointment well before the day of surgery.

The claimant suffered a catastrophic aortic injury and hypoxic brain injury during a third re-do sternotomy for complex congenital heart disease. She alleged negligence in pre-operative planning, intraoperative surgical technique and informed consent. The preliminary issues concerned whether the femoral vessels should have been exposed and prepared before sternotomy, whether the aortic injury resulted from negligent handling of the saw, the time that would have been saved by proper preparation, and whether the consent process was adequate and timely.

The court also considered whether the claimant would have postponed surgery for a second opinion. The issues were confined to preliminary findings of breach and factual or counterfactual matters; legal causation arguments under Chester v Afshar were reserved.

1. Pre-operative planning. Applying the professional practice test and the logical-analysis qualification, the court held that the aorta was closely applied to the sternum and that the risk of injury during the third re-do sternotomy was medium to high. Exposing and preparing the femoral vessels in advance was therefore the minimum reasonable mitigation. The defendant’s failure to do so was negligent.
2. Intraoperative skill. The surgeon misjudged the depth of the oscillating saw, but this was a known and recognised risk of complex re-do sternotomy. The court found no negligence in the handling of the saw. Concerns about the late and incomplete operation note did not justify adverse inferences.
3. Time saved and causation-related facts. On the limited evidence, approximately 13 minutes would probably have been saved by advance exposure and preparation of the femoral vessels. The court also found that preparation would probably have avoided the femoral artery dissection. The neurological consequences of the delay were not determined.
4. Informed consent. Under Montgomery, the claimant should have been told about the material risks and the available variant of exposing and preparing the femoral vessels. The failure to disclose that option was negligent. The claimant should also have had an outpatient consultation with the operating surgeon before the day of surgery. The same-day process was inadequate for surgery of this complexity and risk.
5. Counterfactual choice. On the balance of probabilities, properly informed, the claimant would have proceeded with surgery provided that the femoral vessels were exposed and prepared. She would not have postponed surgery to obtain a second opinion. The application of Chester v Afshar was left for a later stage.