Sylvan Ebanks-Blake v Professor James Calder

In clinical negligence, compliance with a responsible body of medical opinion does not prevent a finding of breach where that opinion cannot withstand logical analysis. The court must determine the standard of care required in the circumstances.

Where a patient has a previously symptom-free and functioning joint, invasive treatment must be justified by the relevant clinical findings and the risks and benefits of available alternatives. Arthroscopy, debridement and microfracture were unreasonable where the acute injury was modest, the lesion was asymptomatic, conservative treatment had a real prospect of success, and surgery risked destabilising the joint. Causation may be established where removal of scar tissue or cartilage materially contributes to pain, even where the causal effect of another procedure is not proved.

The claimant, a professional footballer, suffered a recurrent left fibula fracture during a match in April 2013. The defendant orthopaedic surgeon performed reduction and fixation of the fracture, together with ankle arthroscopy, debridement of scar tissue and cartilage, and microfracture of a talar lesion.

The claimant alleged that only the fracture should have been treated and that the ankle should otherwise have been managed conservatively. The claim was tried on breach and causation, with quantum reserved. The central issues were whether the ankle injuries justified arthroscopy and associated procedures, and whether those procedures caused or materially contributed to the claimant’s subsequent ankle pain and loss of function.

1. Judgment for the claimant. The court found breach of duty and causation on the issues tried. The informed-consent issue was not determined.
2. Clinical negligence was assessed under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, qualified by Bolitho v City and Hackney Health Authority [1988] AC 232. The court, rather than medical opinion, determines the required standard of care. A professional opinion cannot justify treatment if it is incapable of withstanding logical analysis.
3. The defendant’s contemporaneous records showed that he operated to investigate possible instability, rather than because he believed that the tackle had caused a serious acute ankle injury. The court preferred the radiological evidence indicating a modest acute AITFL sprain and limited additional cartilage damage. The larger lesion was substantially chronic.
4. The decision to perform arthroscopy involved a commitment to remove scar tissue and cartilage and to perform microfracture. The scar tissue had helped stabilise and cushion an otherwise functioning, pain-free ankle. The removal of tissue therefore carried a clear risk of destabilising the joint and altering talar loading.
5. Microfracture was strongly indicated for symptomatic lesions after conservative treatment had failed. It was not indicated in this asymptomatic case. Lesions of the claimant’s size carried a significantly higher risk of failure. The possible benefits of early intervention did not outweigh those risks, particularly when conservative treatment had a real prospect of maintaining a pain-free ankle.
6. The only surgery reasonably indicated was reduction and fixation of the fibula. The ankle should have been left alone and monitored. The arthroscopy materially contributed to the claimant’s pain through removal of intra-articular scar tissue and degenerate cartilage. The court was not satisfied that microfracture-related bone oedema materially contributed to the pain.
7. On the hypothetical facts, the claimant would probably have remained pain-free and capable of playing football at a high level for three to five years. The quantification of his chances of continuing his career was reserved for the quantum trial.