Barrett v Sandwell And West Birmingham Hospitals NHS Trust

This is a claim by Mr David Barrett, who is now aged 37, for damages for personal injuries suffered as a result of the alleged clinical negligence of staff at the Birmingham & Midland Eye Centre (BMEC) where he was being treated.  The defendant is an NHS Trust which is vicariously liable for any negligence on the part of the staff.  The claimant’s case is that that he has been rendered effectively blind as a result of the negligent treatment which he received at BMEC in October 2008.

Among other issues, a central issue at trial has been whether (as the claimant says) surgery should have been carried out to relieve excessive post-operative intraocular pressure in the claimant’s left eye within 24 hours of the beginning of medical treatment, or whether (as the defendant says) the condition was appropriately continued to be managed medically.

The defendant’s case is that there was no negligence on the part of its staff.  There is also a causation issue, since the defendant asserts that the claimant, who was suffering from diabetic eye disease, would have lost useful vision in any event.  If liability is established, there is a dispute as to quantum of damages, the claimant claiming damages totalling just over £1.3 million, as against subject to causation £165,506 in the defendant’s counter-schedule (the figure narrowed by the end of the trial).

Proceedings were commenced in the Birmingham County Court in March 2012, and later transferred to the High Court.  The parties’ respective cases are set out in the pleadings (and there have been issues between them as to whether matters in dispute have been properly pleaded which are referred to as necessary below).

At the court’s request, before the beginning of the trial the parties agreed a list of issues.  Each side made oral and written submissions in opening and closing. Following closing, at the court’s request the parties provided further written submissions relating to advice which the claimant says should have been, but was not, given. I have taken all the points that have been made into account (including any not expressly mentioned below).

The court heard oral testimony from the following witnesses of fact called on behalf of the claimant:

The court heard oral testimony from the following witnesses of fact called on behalf of the defendant, all being consultants at Birmingham & Midland Eye Centre:

Each of these witnesses gave his or her evidence well, and their evidence is referred to as necessary below.

It is appropriate to say something more at this stage about the claimant.  That he enjoys dedicated support from his family and friends has much to do with the warmth of his own personality, being described by the defendant’s care expert, Mr Tom Boyd-Smith, as a “smashing lad”.  To cope as well as he has over the last seven years with increasing blindness has been a personal achievement.

It is also appropriate to say something more about Mr Benson. As was pointed out on behalf of the claimant, in a clinical negligence trial it is unusual to have one of the clinicians directly involved give evidence for the claimant.  It was suggested on behalf of the defendant at one point that he might be less than impartial since he carried out the surgery on the claimant at the material time.  However, there is no complaint about his surgery though in the event it was not successful in restoring sight to the claimant’s left eye.  Though there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers), I found him overall to be a good witness who did his best to assist the court. 

The parties’ medical experts were as follows: for the claimant, Mr Dominic McHugh. He has been Consultant Ophthalmologist at King’s College Hospital, London, since 1994. He performs several hundred vitreoretinal procedures each year, of which a significant proportion are for patients with diabetes.

For the defendant, Mr Martin Snead. He was appointed as Consultant Opthalmic and Vitreoretinal Surgeon at Cambridge University NHS Foundation Trust (Addenbrooke’s Hospital) in 1996, and specialises in dealing with all aspects of vitreoretinal disorders.

There is a fundamental difference in opinion between these two distinguished ophthalmologists. In short, Mr McHugh considers that the loss of vision in the claimant’s left eye was caused by damage to the optic nerve resulting from excessive pressure following his vitrectomy a few days earlier. He is of the opinion that this should have been relieved by surgery within a 24 hour period. Mr Snead, on the other hand, is of the view that the pressure was appropriately managed medically, and while it may have had some minimal effect on the claimant’s already significantly constricted and damaged peripheral visual field, it would have had no effect on his central vision which was lost through the effects of his proliferative diabetic retinopathy and the retinal detachment at the macula (an area near the centre of the retina of the eye).

These differences of opinion are central to the case, and each party has extensively criticised the other’s expert. It is not necessary to set out these criticisms in detail.  Some of the points raised amount to a disagreement with the expert’s opinion, and are considered further below.

Despite the criticisms made by the parties, I consider that both experts are highly qualified in the field in which they have given their opinion. It is correct, as the defendant says, that Mr McHugh only refers to his “main sub-specialist interest” being “in the medical and surgical management of diabetic retinopathy” in his second, but not in his first, report (prepared in 2012 and 2014 respectively). On the other hand, in oral evidence he explained that he sees an increasing number of diabetic cases from the ethnic communities in South London which Kings College Hospital serves.

It is correct, as the claimant points out, that only one of the many articles and other pieces written by Mr Snead expressly refers in its title to diabetes. However, in his oral evidence, he explained that he sees around 30-40 young patients a year who are in the worst category of proliferative diabetic retinopathy, like the claimant.

Nevertheless, the parties are in agreement that the court must express a preference as between these two experts. My views in this respect are as follows.

Mr McHugh was particularly good at explaining the functions of the eye to the court, with helpful diagrams. He is a very experienced surgeon, and has a research interest in the use of lasers, the effect of which was an issue which arose in the course of the evidence.

Both experts cited literature in support of their opinions.  In that regard, the claimant criticises Mr Snead for the fact that five new items of medical literature were included in materials supplied by the defendant within the 30 day period prior to trial allowed in the rules. However, there was no suggestion that Mr McHugh was not able to properly deal with this material, and he accepted that he was. The claimant’s real criticism was on grounds of relevance.  Broadly, my view is that both experts referred appropriately to the literature, and though it does give context to some of the issues for decision, little turns on its precise content.

As to context, it is a fair reading of the literature that in the great majority of cases, raised intraocular pressure following an operation (as happened in this case) does not need to be dealt with surgically. On the other hand, as Mr McHugh pointed out, the question is whether the claimant’s case falls within the band of exceptions, and if so, when surgery was indicated.

Further, the defendant emphasises that Mr McHugh has not been able to point to any literature which supports his opinion that medical management of elevated intraocular pressure of 40mmHG and over should be pursued for no more than 24 hours before surgery becomes mandatory.

Having observed both witnesses testify, and studied their reports, my on-balance preference is for the testimony of Mr Snead. He has a particularly impressive C.V., and is undoubtedly a leading figure in the field of ophthalmology, including the vitreoretinal field.  I consider that, on balance, particularly in his oral evidence he took better account of the undoubted complexities in this case than Mr McHugh, and was less partisan. He demonstrated his independence in his oral testimony by a concession that it was “regrettable” that the option of surgery was not discussed with the claimant. The claimant has placed emphasis on this concession in his closing submissions.  Having expressed this preference, however, I make clear that is on balance, and it remains for the court to weigh their evidence on the particular issues where they differ.

Turning to the experts on the damages issues, the claimant’s care expert was Ms Helen Street, and the defendant’s care expert was Mr Tom Boyd-Smith. The claimant suggested that Mr Boyd-Smith lacked the necessary expertise, since he is not an expert in the provision of care. However, he is an expert in the particular living problems faced by those with visual impairment, having done extensive work with the RNIB. Ms Street, on the other hand, though an expert in the subject of care programmes, has no particular expertise in the field of visual impairment. I consider that the evidence of each of them was of assistance in relation to the quantum issues.

Agreement was reached as to life expectancy, and the parties concluded that it would be disproportionate to call the expert diabetologists to give oral evidence. The report of Dr HJ Bodansky for the claimant and Dr Anthony Robinson for the defendant form part of the material before the court.

This case has an extensive background, and it is not necessary (or feasible) to include all the facts, or all the details of the medical evidence factual and expert, which I have however taken into account.  The facts as I find them are as follows.

The claimant was born in 1978, and at the age of 10 was diagnosed as suffering from insulin dependent diabetes.

After he left school, he worked as an electrician, and witnesses testify as to his good work ethic.  He was clearly also a sociable and popular individual.

In 2000, bilateral background diabetic retinopathy was noted. Diabetic retinopathy occurs when high sugar levels damage the retina and is potentially a serious condition.

Over the next few years, the claimant’s condition appears to have deteriorated. There are references in the material to poor diabetic control, and also to the claimant smoking, both of which can aggravate the condition.

At this time, as for some 8 or 9 years afterwards, the claimant was being treated under the supervision of Mr Benson.  A letter from his department was the subject of considerable discussion at trial.

On 21 May 2004, Mr Benson’s then SHO (Senior House Officer) wrote to the claimant’s GP.  She recorded that, “This gentleman was quite frustrated as his vision is quite poor and he is at the moment not able to do his job as an electrician”. Poor visual acuity is recorded, though as was pointed out on the claimant’s behalf at trial, this was tested on an unaided basis, apparently because the claimant did not bring his long distance glasses. With his glasses, his vision at that time was near normal.

The claimant submits that when viewed against the rest of the evidence, this letter must be a mistake, and criticises Mr Snead for his interpretation of it. The claimant himself says he had no such problems at the time.

On the other hand, it is difficult to see where this information could have come from, if not from the claimant.  I would be inclined to accept that the SHO recorded what she was in fact told.  But it is not determinative, and I need make no finding.

Perhaps more significantly, the SHO records that she discussed the case with Mr Benson who suggested that the claimant should have a fluorescein angiogram.  In July 2004, that showed bilateral macular ischaemia (lack of blood to the sensitive macular portion of the retina) and the suggestion of peripheral nerve vessel formation on the left.  The diagnosis at the time was pre-proliferative diabetic retinopathy in both eyes.

Monitoring now became particularly important, but it seems that over the next two years there were episodes of non-attendance by the claimant at clinic appointments, and he was next seen in clinic in October 2006. Laser treatment began about this time.  Mr Snead gives considerable significance to this, considering that earlier laser treatment would have substantially reduced the risks of the complications that later occurred.  I need make no findings in this respect.

The claimant’s deterioration is shown by a letter sent by Mr Benson to the claimant’s GP following a clinic attendance on 3 December 2007. Mr Benson says he was “concerned that this gentleman has very aggressive proliferative retinopathy”. The letter goes on to discuss the fact that he found laser treatment uncomfortable and that Mr Benson had arranged to carry out bilateral indirect laser treatment under general anaesthetic. This was carried out at BMEC in December 2007.  The evidence is that the claimant received unusually extensive laser treatment over this period, and there was an issue as to whether this could cause damage to the retina, which I need not resolve. 

On 29 September 2008, the claimant was examined by Mr Benson. He complained of blurred vision, which was getting worse. Mr Benson diagnosed “aggressive neovascular disease” and planned a vitrectomyon his left eye and indirect laser treatment on his right eye. Mr Benson’s notes state that he told the claimant that there was a “very guarded prognosis”. Mr Benson explained in evidence that he wanted his patient to be aware that there were no promises the operation would be successful.

It was, as Mr Benson put it, a big and complex operation. It took place on 14 October 2008, when he performed a left vitrectomy, delamination of the membranes, endolaser photocoagulation, and a gas injection, together with right indirect laser photocoagulation. In fact, the “gas”, used as the tamponade was air.

When Mr Benson reviewed the claimant on 15 October 2008, the following day, his visual acuities were recorded as 6/30 on the right, and perception of light on the left. On the left eye, a hyphaema, that is the presence of blood in the anterior chamber at the front of the eye, was present. This however was not in itself unusual following such an operation.  The intraocular pressure (IOP) was 20mmHg, which is normal.  For convenience, I will refer to the IOP from now on as is done in the medical notes simply by reference to the number.

The claimant’s condition did not give rise to concerns, and he was discharged. An appointment was made for him to see Mr Benson in two weeks time, that is on Monday, 27 October 2008.

To put matters into context, it is unfortunately correct to say that since this operation on 14 October 2008, the claimant has effectively had no useful vision in his left eye.

The critical time period in this case is relatively short, namely 23 to 27 October 2008.  It is convenient to split it down, starting with the period from Thursday, 23 October to Sunday, 26 October.  Mr Benson was on holiday at this time, which coincided with school half term.

The claimant describes how he had some slight discomfort in his left eye on 22 October, but by the evening he was in excruciating pain.  On 23 October 2008, he attended the ophthalmic accident and emergency department at BMEC.

What happened over the next five days is central to this case. In this regard, the court has seen the medical records, and has heard factual evidence from the three senior clinicians at BMEC who were involved in the claimant’s treatment, as well as from Mr Benson who returned to work on 27 October when he saw the claimant, and decided to operate the following day.

The notes show that when examined at 10:30 am on 23 October 2008, although the IOP was normal in the right eye (at 18) it was found to be elevated in the left eye at 40.  Without drawing precise distinctions, it is common ground that an IOP of 40 is high and requires active management to protect the eye.  The notes record hyphaema of 4mm.  The significance of this is that following the operation the blood had not cleared by itself.

These measurements are important, and to explain how they developed over this period there is annexed to this judgment a table prepared on behalf of the claimant for closing submissions.  The connection between IOP and hyphaema is that a hyphaema can cause a rise in pressure—as Mr McHugh explains in his report, red blood cells cause obstruction to acqueous outflow through the drainage angle so that pressure builds up. 

The treatment plan was discussed with Professor Robert Scott, a consultant ophthalmologist at BMEC and specialist vitreosurgeon with a clinical interest in diabetic eye disease. He advised treatment with oral Diamox and Lopidine drops. The medical notes show that it was known that the claimant was due to see Mr Benson on Monday.

It is not in dispute that this was an appropriate course of treatment, and to the extent that it was challenged, I accept Professor Scott’s evidence. He said that an intraocular pressure of 40 is “moderately high” and requires active medical management but would not be a case requiring immediate surgical management. The course of action he decided on was to try to bring down and manage the pressure until the claimant could see his treating consultant on Monday who could make any decisions about further intervention if required.

In fact, the left eye IOP did reduce to 35 that evening, although Professor Scott cannot recall whether the junior doctor had updated him on this or not.

Professor Scott also said that high IOP requires appropriate and speedy management.  He said that “as a rule of thumb, the patient can be discharged if pressure is between 20 and 30, between 30 and 40 you have to watch a bit carefully, and at 40 you need active management”. He also said that after a vitrectomy the red blood cells generally clear after a time.

The claimant says that he was told to return the next morning, which he did. It was found that the hyphaema was now 3.2mm, and the pressure in his left eye had now risen to 46.

I infer that this gave considerable cause for concern, because at 11 am that morning, the claimant was examined by Mr Ash Sharma, a consultant ophthalmic surgeon at BMEC specialising in vitreoretinal surgery and eye disease. The claimant’s allegations of negligence are principally focused on the course taken by Mr Sharma at this time.

Mr Sharma admitted the claimant for IOP control. He did this by addressing the pressure medically, that is through drug treatment.  This included oral Diamox plus topical hypotensives.  He also prescribed intravenous Mannitol, which had not been part of the treatment up until that time. The evidence is that this is a powerful drug which decreases vitreous volume. Partly because of the side-effects, this drug is short-term rather than long-term treatment.  Mr Sharma’s notes record that the claimant is to see Mr Benson at Solihull on Monday.

Mr Sharma also arranged for a B-scan (an ultrasound scan) to be carried out.   The scan was carried out by a specialist described as a visual scientist, the evidence at trial being that he was qualified to interpret the scan. Although the pre-trial material consisted of a photocopy, the original snapshot was produced at trial.  The evidence was that the specialist actually taking it would have seen something more like a video.  Among the notes he made, was reference to a possible choroidal haemorrhage in the claimant’s left eye.

Mr Sharma reviewed the scan. He said that the suspected choroidal haemorrhage pointed to a diagnosis of suprachoroidal haemorrhage. He considered that this increased the complications of surgery.  I am satisfied that he held this belief at the time, and make further findings as to whether this was right later in this judgment.  

The notes are to the effect that the treatment plan was discussed with Ms Stavrou, who is also a consultant ophthalmic surgeon (she did not give evidence at trial).

The defendant’s case is that Mr Sharma acted perfectly properly.  The claimant on the other hand submits that Mr Sharma missed the opportunity at 11:00 am or soon afterwards to arrange for surgery which by then had become mandatory, because 24 hours had passed since medical treatment of the elevated pressure had commenced, and the pressure remained unacceptably high.  It is common ground that the claimant would have needed to fast for six hours before surgery.

At 5.40 pm, the IOP was down to 38, but at 8:45 pm, it was up again at 44. The medical notes show a discussion with a specialist registrar, the upshot being that there was nothing further to be done that night.

 On 25 October 2008, which was a Saturday, the claimant’s left IOP is recorded as 48 at 11:30 am, and the hyphaema at 3.3mm.

At 15:10 that afternoon, the IOP was recorded at 45, the hyphaema still being 3.3mm at this time.

At that point, the case was discussed with Professor Murray, Professor of Ophthalmology, though not himself a vitreoretinal specialist. He was, however, consultant on call at this time. The claimant submits that his advice must have been sought because of concern about the high intraocular pressure.  I agree with this submission.

The claimant’s case is that Professor Murray did not consider surgery, and was wrong not to have done so. The claimant’s case is that the situation was very urgent, and required the immediate consideration of urgent surgery.  In his evidence, Professor Murray says that he would have considered surgery, which raises a factual issue which is determined below.

At 19:00, the hyphaema is recorded as 3mm and the left IOP as 47.  This was the highest the IOP had reached up to that time.

At 09:50 on the morning of Sunday 26October 2008, the IOP in the claimant’s left eye was 49, and the medical notes record “full hyphaema”.

At 10:45, the specialist registrar called Mr Sharma, who it so happened was the consultant on call because he was covering that day for Professor Murray. Mr Sharma advised further intravenous Mannitol and added oral glycerol, which had not at that point been included in the medication.

The claimant’s pressure was measured later in the day, though there is not a time stamp. The notes say “review this evening”, which the claimant says (probably rightly) suggests it was prior to the evening. At that time pressure was 36, and the hyphaema 1.7mm. The notes read, “IOP settling”.  Mr Sharma says this shows that the treatment he recommended proved effective.  The claimant says that it reflects the short term effect of the powerful medication.

27 October 2008 was a Monday. There is an entry for “7:30 am” with the date “26/10/08” written in above it. Despite Mr McHugh’s evidence that the “a” could be a “p” and so be referable to the previous evening, I am satisfied that “26” has been written in error. I find that this entry refers to Monday morning at 7:30 am. It records the IOP as 34 and 36, and the hyphaema as 1.75mm-1.50mm.

In cross-examination, Mr Benson accepted that the pressure appeared to be improving, and whilst reluctant to be drawn into using the word “reassuring”, he did in substance accept that it was.

However, unfortunately this improvement did not continue.  The notes for 13.10 pm record that the claimant still had a painful left eye. The evidence of the claimant and his mother, which I accept, is that he was worried about his condition, and whether he could make his appointment with Mr Benson that afternoon.

In fact, when his pressure was recorded as at 13:10, it had risen steeply to 52 in his left eye, with the hyphaema at 3mm.

There is a significant dispute between the parties in this respect.  Mr Snead’s opinion was that the large rise in the IOP and the size of the hyphaema is explained by a re-bleed.  In oral evidence, he described it as a serious possibility.  It was the presence of the re-bleed, he said, that tipped the balance to surgery, and but for that he would have continued with medical treatment.

Mr McHugh was unwilling to accept that a re-bleed was a possible explanation, and the claimant’s case is that there was in fact no re-bleed or that it was irrelevant because it was the fact of the hyphaema which was of importance.

However although it was submitted for the claimant that Mr Snead was “on his own” in this respect, the three BMEC surgeons did not see the claimant on Monday, and which may explain why they did not deal with this issue.  Mr Benson did accept a re-bleed as a possible cause.  He did not himself identify the source of the bleeding in the eye, and his notes of the operation on 28 October do not identify the cause.  In so far as I have to make a finding, on balance I consider Mr Snead’s explanation as best fitting the facts as known.  I consider that this is relevant over and above the fact of the hyphaema, because it is consistent with the pressure reducing by Monday, with the implication that medical treatment was working, and then again sharply elevating due to an extraneous cause.

The claimant’s mother arranged for his sister to take him to the Solihull Hospital Eye Clinic, where Mr Benson is based. The nursing staff gave him his medical notes, and told him not to remove his hospital wristband, because he would have to return to the ward once he had seen Mr Benson.  It is clear from their evidence that the claimant and his mother feel that more should have been done by BMEC to contact Mr Benson, but this does not affect the matters I have to decide.

Mr Benson saw the claimant at 16:04 that afternoon. The claimant’s case is that, perturbed by the delay in treatment, Mr Benson “held his head in his hands”. He does not have a precise recollection of the consultation, though his witness statement says that this would have perfectly reflected his mood upon realising that the claimant had not been operated upon.  He says that had it been him, he would have operated after 24 hours of medical treatment if the pressure was not alleviated, and this is the claimant’s case.

Mr Benson recorded the pressure in the claimant’s left eye as 56, which was the highest it ever reached. He noted that hyphaema was present, but did not measure it. He prescribed further intravenous Mannitol, and planned a left vitrectomy the following day.

The operation took place at BMEC the following morning. Mr Benson explained in his oral evidence that it was in effect the same operation that he had carried out on 14 October 2008.  Although there was air and oil in the front of the eye where it should not have been, the operation was successful in the sense that when the IOP was measured on 29 October 2008, IOP was now within normal limits at 20. However, visual acuity remained as perception of light, which unfortunately remains the position.

On 17 December 2008, Mr Benson noted some localised tractional retinal detachment in the left eye, and considered that it might be possible to obtain some visual improvement by dealing with this operatively.

This operation took place on 21 January 2009, Mr Benson noting that it was to deal with an aggressive retinal membrane resulting from diabetic eye disease.  He records that the procedure went well technically, with normal intraocular pressure and an attached retina.  However, he also records that the central retina was in very poor shape despite being attached, which he thought was the result of severe ischemia. As a result, the visual prognosis for the left eye was very poor. However, he says that the right eye was now “behaving well with good control of the neovascular disease. Clearly this needs to be watched closely”.

The material before the court shows that from about 2009 it was realised that little more could be done for the left eye, and attention shifted to the claimant’s right eye, through which he still had reasonably good vision.  However unfortunately, this did not last.

On 21 July 2009, Mr Benson referred the claimant to Mr Zdenek Gregor, consultant vitreoretinal surgeon at Moorfields Eye Hospital in London. Mr Benson explained that over the past two years, the claimant had developed a very aggressive proliferative retinopathy. The vision in the right eye had improved, but there was some fibrosis in the macular area.

Mr Gregor’s opinion is recorded in a letter dated 21 October 2009. The position at that time was stable, and Mr Gregor said that whilst surgery may become indicated, the claimant was naturally not at all keen on any surgery at this point.  Mr Gregor reinforced Mr Benson’s advice not to operate on the right eye at this point.

It appears that in April 2010, the claimant experienced a sudden drop in the vision in his right eye, though this did settle.

In about April 2011, he had a vitreous haemorrhage in his right eye, which was however clearing. He appears to have had a further haemorrhage in November 2011, but again this was not serious.

However, by 16 October 2012, Mr Benson’s Staff Grade assistant referred the claimant to BMEC to consider “delamination procedure for this patient who has extremely poor vision in his only good eye”.

In April 2013, Mr Benson referred the claimant to Mr Stephen Charles, consultant ophthalmologist and vitreosurgeon at Manchester Royal Eye Hospital (by now Mr Gregor had retired). In a letter, Mr Charles refers to a frank discussion with the claimant and his parents to the effect that vitreoretinal surgery was not without risk, including blindness, and also had a guarded prognosis due to the long standing maculoschisis. However, surgery was indicated and he reports that the claimant accepted the risks and was keen to proceed.

That operation took place on 15 May 2013. Whilst the material before the court shows that the claimant was satisfied with the operation, in terms of improved vision it was only of limited success.

Overall, the experts agree that he has now lost 90% of his vision, with a 25% chance of loss of all functional vision over the next ten years.  It is agreed that he now lacks almost completely the capacity for fully independent living and requires a high degree of support. 

At the beginning of the trial, the following issues on breach of duty and causation were identified and agreed by the parties for determination by the court:

The claimant’s case is that the initial management of the elevated IOP on 23 October 2008 was appropriately undertaken by attempting medical therapy. However, that should have been for a maximum period of 24 hours before urgent surgical management was required. Given the claimant’s pre-existing diabetic retinopathy, there would have been the risk of permanent optic damage arising after only a few hours. Although the claimant suffered a subsequent retinal detachment on the left side, had there been appropriate earlier management of the eye, that would have been capable of being treated successfully. The final visual acuity in the left eye would have been an estimated 6/24 to 6/60.

Further, as a result of the severe impairment in vision in the left eye, it was considered appropriate in 2011 not to proceed to operative treatment on the right side. It was only as the right side deteriorated that it was operated on in 2013. Accordingly, mismanagement of the claimant by the defendant has set in play a cascade of events which has ultimately resulted in the claimant being rendered effectively blind.

In closing, the claimant naturally emphasised the effect of Mr Snead’s “concession”. At no point between 23 and 27 October 2008 was the claimant told of any possibility of having urgent surgery to his left eye. Had he been told of the possibility of having urgent surgery, he would have wished to undergo the same. The defendant was obliged to inform and advise him of the option of urgent surgery dispassionately and benefiting the benefits and risks – there was a total failure to do so.

If negligence had not occurred, the claimant would have expected to return to work in around 3 months. Although he could not have worked as an electrician, he could have used his experience, and obtained work as a “non-working foreman” in the electrical field, supervisory work with an electrical contractor, or other appropriate work.

In summary, on the basis of the evidence of Mr Benson and Mr McHugh, with the claimant presenting as he did with his diabetic eye condition and the vitrectomy recently undertaken, his case is that it was mandatory to perform urgent surgery after a maximum of 24 hours and no other course was reasonable. The defendant’s position is unsustainable as even on its own case, neither Mr Sharma nor anyone else discussed the option of urgent operative treatment with the claimant.

The claimant accepts that absent the negligence, there would have been an element of deterioration in his vision, however he would have had significantly better vision. In the left eye he would have had visual acuities in the range between 6/24 and 6/60, and in the right eye 6/38 and 6/60. More importantly, the claimant would have been able to lead a fully independent life style.

If it is Mr Snead’s position that the high IOP did make a material contribution to the claimant’s visual loss, but he is unable to quantify that contribution, then following Bailey v Ministry of Defence [2008] EWCA Civ 883, it is submitted that the claimant is entitled to claim for the entirety of the damage to the left eye, irrespective of whether the causes are of a result of negligence or otherwise.

Accordingly, the claimant invites the court to make the following findings:

The defendant’s case on liability and causation is as follows. It was reasonable prospectively for Mr Sharma at 11:00 on 24 October 2008 to manage the claimant’s elevated IOP and hyphaema as an inpatient with medical therapy. Given the way the case has been pleaded and argued, on that basis the claim must be dismissed.

There is no medical basis for Mr McHugh’s opinion that medical management of elevated IOP of 40 and over should be pursued for no more than 24 hours before surgery becomes mandatory. Mr McHugh’s evidence is not supported by that of Mr Benson, who did not say that no responsible body of ophthalmic surgeons would have continued to treat the patient with medical therapy during the period of 24-27 October 2008.

Professor Scott, Professor Murray, and Mr Sharma amply justified their decision making over the relevant period, and constitute a responsible body of ophthalmological opinion.

Whilst Mr Snead accepted that it was “regrettable” that the option of surgery had not been discussed with the claimant on 24 October 2008, on the key issue, that of reasonableness of medical management between 24 and 27 October 2008, Mr Snead was clear that this was reasonable in all the circumstances.  He considered that the raised pressure on 27 October 2008 was caused by a re-bleed, and but for that, he personally would have pursued medical management for longer still.

In any case, the key factor is that neither Mr Sharma nor Mr Snead would have recommended that the claimant undergo surgery. As the claimant accepted, he would have accepted the recommendation of the specialists who were treating him in hospital.

If contrary to the above, the defendant should have operated on the claimant’s left eye, it would not have been realistic in all the circumstances of this case at BMEC in 2008 to have expected complex and difficult vitreoretinal surgery to have been performed before Monday morning at the earliest. But by 07:30 on Monday morning, both the IOP and the hyphaema were relatively reassuring. Further, although the period of raised IOP may have had some minimal effect on the claimant’s already significantly restricted and laser damaged peripheral visual field, this would have had no effect on his central vision which was lost through the effects of his proliferative diabetic retinopathy and the retinal detachment at the macula.

Mr McHugh was wrong to assert that because the retina had been reattached on 28 October 2008 and the claimant did not recover vision in his left eye, any loss of vision must have been caused by optic nerve damage. The alleged negligent delay in eye surgery did not make a material contribution to the claimant’s loss of vision following the vitrectomy on 14 October 2008. At best, the vision in the left eye would have been hand movements rather than perception of light but in all probability it would not have been any different from now.

The final retinal detachment on the left side appears to have occurred between February and April 2009. Therefore, even if the claimant had retained some useful vision in the absence of the alleged negligence, he would have lost that vision within six months of October 2008.

As to the right eye, Mr Snead did not support Mr McHugh’s theory that a better outcome would have been achieved with earlier right vitrectomy. There is no causal link between the alleged negligence and the loss of vision in the right eye, the latter being the consequence of the claimant’s aggressive proliferative diabetic retinopathy alone.

Earlier vitrectomy on the right eye would have made no difference.

Accordingly, the claimant would have been severely and permanently sight impaired as a result of persistent bilateral retinal detachment. He would have been in no better position than now.

The case put by the claimant in closing submissions that urgent surgery could have taken place “very early on 25 October 2008” is a new case. Further, the case put in closing submissions that the defendant should have advised the claimant that there were two options for treatment, and that the claimant would have chosen to have had urgent surgical treatment, is not a case which has been pleaded or advanced, and it would be unfair to allow the claimant to advance it in closing.

The parties are not in disagreement about the applicable legal principles as to which there was limited debate at trial.  Taken from the defendant’s opening submissions, the test to be applied as to whether there was any negligence by the defendant’s ophthalmic surgeons is by the standard of the ordinary skilled ophthalmic surgeon in October 2008, exercising and professing to have the special skill of an ophthalmic surgeon.

Taken from the claimant’s closing submissions, the test in clinical negligence cases is set out in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and qualified in Bolitho v. City and Hackney Health Authority [1998] AC 232.  The Bolam test at p.587 provides that a medical practitioner “… is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view”.

As held in Bolitho (quoting from the headnote at p.233), in applying the Bolam test “ … the court had to be satisfied that the exponents of a body of professional opinion relied upon had demonstrated that such opinion had a logical basis and in particular directed their minds where appropriate to the question of comparative risks and benefits and had reached a defensible conclusion; that, if, in a rare case it had been demonstrated that professional opinion was incapable of withstanding logical analysis, the judge was entitled to hold that it could not provide the benchmark by reference to which the doctor’s conduct fell to be assessed, but that in most cases the fact that distinguished experts in the field were of a particular opinion would demonstrate the reasonableness of that opinion;”. 

The claimant also relies on the recent decision of the Supreme Court in Montgomery v. Lanarkshire Health Board [2015] 2 WLR 768, in which it was held that the doctor’s duty to advise the patient as to the risks of proposed treatment does not fall within the scope of the Bolam test ([86]).  It was held at [87] that:

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”     

 The claimant draws attention to the passages in the judgment which deal with the assessment of whether a risk is material ([89]), the doctor’s advisory role involving dialogue ([90]), and the degree of unpredictability inherent in the decision being tolerated as a consequence of protecting patients from exposure to risks of injury which they would otherwise have chosen to avoid ([93]).  Attention is also drawn to [103] where it is said that, “The question of causation must also be considered on the hypothesis of a discussion which is conducted without the patient being pressurised to accept her doctor’s recommendation”, and advice as to the risks being discussed dispassionately explaining the potential consequences of the alternatives ([104]).  As to alternatives, “… it is not possible to consider a particular medical procedure in isolation from its alternatives.   Most decisions about medical care are not simple yes/no answers.  There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done…” ([109]).

Thus, the claimant says, it is no longer permissible for a clinician to simply give to a patient their preferred course – the advice must be given dispassionately and issues discussed with the patient. 

In respect of causation, the claimant refers to the principle in clinical negligence cases of “material contribution” arising from the case of Bailey v. Ministry of Defence [2008] EWCA 883 at [46].  The claimant formulates the principle as follows: If a court is satisfied that the negligent cause has made a material contribution to the loss but the state of medical science is such that a determination of the precise extent of that loss cannot be made even on a balance of probabilities then the claimant succeeds in causation and also succeeds as if the entire loss had resulted from the negligence.  The defendant does not dispute the principle, but does dispute its application to the present facts, including a submission that this is not a case at the limits of medical science.

Neither party argued that loss of a chance is relevant in this case.

It should be stated at the outset that the issues of breach of duty and causation in this case are difficult ones. The claimant’s case is that surgery on his left eye should have been carried out on 24 October 2008, and has adduced strong evidence to that effect. However, there is strong evidence going the other way, to the effect that medical management was the right course.  Further, such surgery was in fact carried out on 28 October 2008, so that the question is not only whether earlier surgery was required, but whether this would have made a difference. The claimant relies on a failure to advise as to the options, but the defendant objects that this was only raised in closing and is unpleaded, and it would be unfair to allow the claimant to pursue it now. It raises its own causation issues.  Additionally, the claim is complicated by the fact that the claimant suffered retinal detachment in his left eye some six months after the operation, and there is an issue as to whether he would have lost vision in his left eye irrespective of whether surgery should have been carried out earlier. Finally, loss of vision in the claimant’s left eye would not in itself have deprived the claimant of his independence, which is the basis of the damages claim. The loss of vision in the right eye is factually unconnected with the left eye, and the question is whether the claimant can establish a causal connection from what he argues was a justifiable reluctance to perform surgery earlier in view of the history of the left eye when it would have made a difference.  In seeking to answer these questions, the court has heard factual and expert evidence from six highly qualified opthalmic surgeons, who fundamentally disagree on some of the central issues. Finally, the background is one of a young man who tragically has suffered from aggressive proliferative diabetic retinopathy, and who needs as much support as possible going forwards. All this has made this case particularly difficult to decide.

The analysis can usefully be broken down into a number of questions (I make it clear that this includes the questions raised by the parties in argument). First, is the claimant right to assert a breach of duty consisting of a failure to operate on his left eye on 24 October 2008? Second, was the defendant in breach of duty by failing to give proper advice as to the alternatives? Third, if the answer to either of these questions is affirmative, did the fact that the operation was not carried out until 28 October 2008 make any, or any material, contribution to the claimant’s loss of vision in his left eye? Fourth, would the claimant have lost vision in his left eye in any event by reason of retinal detachment from about April 2009? Fifth, given the fact that there was no negligence in the treatment of the right eye, can the claimant show that the loss of vision in that eye was caused by the breach of duty was in relation to the left eye?  These headings, of course, include various other issues, but reflect in broad terms the issues which arose at trial so far as liability and causation are concerned.

Failure to operate on 24 October 2008

The claimant’s case is that a maximum of 24 hours should have been allowed after instituting medical therapy, and that the defendant should have proceeded to surgical management from around 11:00 am on 24 October 2008. This is the time when Mr Sharma saw the claimant, and admitted him to hospital as described above. The claimant’s case as articulated in Mr Benson’s witness statement and Mr McHugh’s report is that it was mandatory to intervene surgically to lower the pressure in the claimant’s left eye by undertaking a vitrectomy following this examination.

The annexed table showing the intraocular pressure and hyphaema measurements over the critical days show that the IOP was 40 at 10:30 on 23 October 2008 and (whilst the claimant was at BMEC) rose to 49 at 09:50 am on Sunday 26 October 2008. The lowest level during this period was 35 at 19:45 on Thursday 23 October. There was evidence that pressures can be higher in the morning due to overnight sleeping posture, and also some debate among the ophthalmologists as to how these pressures should be characterised. Reference was made to glaucoma patients with an IOP of over 50, and indeed considerably over 50. However, I am satisfied that the pressures in the claimant’s case can properly be described as high to very high over the whole period under consideration. I find that this was, as Mr Snead put it, worrying.

Mr McHugh produced from the medical literature a useful piece on “Elevated Intraocular Pressure Associated with Retinal Procedures”, which is consistent with the other evidence in the case. It is to the effect that elevated IOP is a common complication following pars plana vitrectomy, particularly among patients with proliferative vitreoretinopathy (like the claimant). If therapy is needed to control IOP elevation, most cases can be managed medically with anti-glaucoma medications. Occasionally, surgical intervention is needed to relieve extremely high IOPs, and the procedure is chosen carefully based on the mechanism of IOP elevation. The study cited showed that 11% of the patients in the study required some form of surgical intervention.

Although it has been suggested on behalf of the claimant that lesser surgery would have sufficed, as noted elsewhere in this judgment, the intervention carried out by Mr Benson on 28 October 2008 was essentially the same operation as he had carried out on 14 October 2008.  I find that if surgery was to be carried out, it was of this nature (and not for example release of gas from the left eye – it became clear that the reference to “gas” as regards the operation of 14 October 2008 was a reference to air).  This was effectively common ground between the experts in their oral evidence at trial.

In any case, the claimant accepts that the medical treatment (i.e. with drugs) prescribed on 23 October 2008 when he attended as an out patient at BMEC was appropriate.  There is no question in my view that this is correct.  The medical notes suggest that this was commenced about 11.00 am when treatment was discussed with Professor Scott.

When he returned on the morning of 24 October 2008, the claimant’s IOP was 46 which was materially higher than the previous day. It remained at 46 when Mr Sharma saw him at 11:00 am. Mr Sharma admitted the claimant, and obtained a B scan (ultrasound). I am satisfied that he acted reasonably in taking this course.

The results of the scan give rise to a dispute of fact.  As already noted, the scan was carried out by a specialist qualified to interpret it. Although the pre-trial material consisted of a photocopy, the original snapshot was produced at trial.  The evidence was that the specialist taking it would have seen something more like a video.  Among the notes he made, was reference to a possible choroidal haemorrhage in the claimant’s left eye.

Mr Sharma reviewed the scan. He said that the suspected choroidal haemorrhage pointed to a diagnosis of suprachoroidal haemorrhage. He considered that this increased the complications of surgery, and I am satisfied that he held this belief at the time, and that it was reasonable. 

However, his opinion is not fully borne out by the expert evidence.  In this regard, the claimant points out that Mr Snead does not refer to choroidal haemorrhage in his report. When asked about this, his response in cross-examination was that he was unaware that the scan had been carried out by someone qualified to interpret it, and so felt he could not give it any weight.  The claimant submitted that this was a “bizarre” answer, but I do not accept this.

The scan itself is mentioned in the experts’ joint memorandum, though it is common ground that the haemorrhage being discussed by the experts was to a possible sub-macular haemorrhage suggesting a retinal break or tear, providing a conduit for blood from the vitreous cavity to gain access to the sub-retinal space.

Having seen the original snapshot at trial, Mr McHugh said in evidence that the scan did not point unequivocally to a choroidal haemorrhage.  If in fact there was a haemorrhage, it was relatively localised and a low risk to surgery.  Mr Snead said that the scan indicated blood, but it was not clear where it was located.  It could be lying beneath the retina, or it could be in the choroidal space.  My overall impression from the expert evidence is that the risk that concerned Mr Sharma was part of the overall picture, rather than a presenting a serious further risk in itself.  I find that the results of the scan did not in itself rule out surgery if otherwise required.

The critical question is whether surgery was required. Mr Benson’s evidence was that he would have proceeded to surgery. It is common ground however that it could not have happened immediately, because the patient requires to be starved for six hours prior to surgery.

A complicating factor is that the patient was due to see Mr Benson on Monday on his return from holiday.  Mr Sharma explained that it is generally safest to leave the decision about further specialised surgery to the original surgeon. As the claimant says however, and I accept, that whilst this is clearly correct, it cannot be an answer where (as here) the original surgeon will not be available for another three days – if, that is, immediate surgery is required.

In closing, the claimant submitted that there should have been urgent surgery undertaken by the afternoon of 24 October 2008 or, alternatively, at the latest late on 24 October 2008 or very early on 25 October 2008.  The defendant objects that this is a new case, since what is pleaded is that surgery should have taken place after a maximum period after instituting medical therapy on 23 October 2008.  It was clarified on behalf of the claimant orally that what was meant by this in closing submissions was late on the night of 24 October or in the early hours of 25 October.

In this respect, there were other complications raised in the evidence, including Mr Benson’s evidence, to which it is necessary to refer.  The claimant was seen by Mr Sharma at 11.00 am on 24 October.  I do not think there is any dispute that (and I am satisfied that) this was the first opportunity when a decision as to surgery could have been taken.  Allowing for six hours starvation, the claimant could not have been ready until the evening, and perhaps even the late evening.

However, a vitrectomy is a complex operation requiring a full-staffed surgical theatre.  Mr Benson himself waited until the following morning to operate after he saw the claimant on the afternoon of 27 October when the pressure had reached 56.  On the evidence, it is in my view doubtful that a late night operation would have been practical.

Further, 25 October 2008 was a Saturday.  In closing the defendant submits that it would not have been realistic in all the circumstances of this case at BMEC in 2008 to have expected complex and difficult vitreoretinal surgery to have been performed before Monday morning at the earliest. 

The claimant objects that there is no pleaded case by the defendant to this effect, and that the defendant should not be allowed to advance it. It is right to say that it is not pleaded, though it can equally be said that the defendant was responding to a pleaded case to the effect that surgery should have been carried out on 24 October 2008.

It was clear on the evidence (including that of Mr McHugh and Mr Benson) that surgery over the weekend would have difficult, the reason being primarily logistical, in terms of assembling a specialised surgical team.  However, though a factor within the factual picture as a whole, I do not think that it is a decisive factor in this case. Albeit extended slightly to the early hours of 25 October in closing, the claimant’s case is that surgery had to be carried out on 24 October.  It is not the claimant’s case that surgery should have been carried out over the weekend, and indeed an important part of his case is that damage to the optic nerve can happen within a few hours.  Had the view been taken, as is maintained on behalf of the claimant it should have been, that surgery was required on 24 October 2008, I am satisfied that a way would have been found to accomplish this. So one comes back to that central question.

In that regard, reliance is placed by the claimant on the evidence of Mr Benson. It is correct that in his witness statement Mr Benson says that surgery was “mandatory”. The defendant in contradicting this evidence placed considerable reliance upon the fact that Mr Benson did not report this as a Clinical Incident or Serious Untoward Incident, and indeed continues to refer patients to Mr Sharma, for whose skills he expressed a high opinion. However, I place a limited weight on this contention. Even the best practitioners can make a mistake, and the claimant’s case is that Mr Sharma did.

However, it is important to be clear what Mr Benson said in his oral evidence about the treatment. The gist of his evidence was to accept that other surgeons had taken a different view to his view. He was not, he said, in court to criticise colleagues, but his view was that the claimant should have had surgery prior to the weekend. Whilst of a clear view as to what he would have done, taken as a whole I agree with the defendant that his oral evidence did not rule out the possibility of a different view being taken by a responsible clinician.

So far as the expert evidence is concerned, Mr McHugh firmly stated that surgery was mandated by the fact that by 24 October, the claimant’s IOP had not come down. He was of the opinion that raised pressure at this level would cause damage to the optic nerve within a short period of time. He accepted the risks of complex vitreoretinal surgery, but was of the opinion that it was necessary to take that risk.  However, as the defendant says, Mr McHugh did not point to any literature which supported his opinion that medical management of elevated IOP of 40 and over should be pursued for no more than 24 hours before surgery becomes mandatory.  I agree with the defendant that this might have been expected, and I do not accept Mr McHugh’s evidence in this regard.

Mr Snead was equally firmly of the contrary opinion, stating that raised IOP would have had no effect on the claimant’s central (as opposed to peripheral) vision (a point also emphasised by Mr Sharma), and that the risks of undertaking complex surgery at this point in time far outweighed the risks of proceeding with medical management. But for the re-bleed which he believes occurred on Monday, he himself would not have operated on 28 October 2008, but would have continued to treat the claimant medically.

There is a further point to note here on the evidence.  The plan instituted by Mr Sharma on Friday added intravenous Mannitol to the existing medical treatment.  Even allowing for Mr McHugh’s evidence (which I accept) that Mannitol will only have a temporary effect, it is correct as the defendant says that the medical treatment implemented on the advice of Professor Scott on 23 October was augmented by Mr Sharma on 24 October.  He did not simply continue with the existing treatment.

Before expressing a conclusion, it is necessary to deal with an allegation made by the claimant as regards Professor Murray.  The claimant’s case is that when the treatment was discussed with him on the afternoon of Saturday 25 October 2008, Professor Murray did not consider surgery, and was wrong not to have done so. The claimant’s case is that the situation was very urgent, and required the immediate consideration of urgent surgery.

Professor Murray was consulted on the phone, and in his statement says he cannot recall the conversation (which took place 5 years earlier) but that he would have considered surgery. He said he had knowledge of many patients who have vitreoretinal surgery, and works closely with his vitreoretinal colleagues.

His advice, he said, was to persevere with aggressive medical treatment as before, and wait to see if the IOP reduced as the blood in the eye cleared. There was, he said, nothing about the claimant’s presentation that suggested to him that urgent surgical intervention was required, the condition appearing to be relatively stable and capable of being managed medically until the claimant could see Mr Benson on Monday 27 October. In the 25 years he has been a consultant, he said he had been called about a patient with a vitreoretinal issue “many, many times”.

As indicated, Professor Murray could not recall the conversation specifically. However, I had the opportunity to see him give oral evidence, and I accept that albeit not a vitreoretinal specialist, he had considerable experience of dealing with such cases, and that he would have considered surgery, but thought it was right to continue with medical treatment.  I do not accept that he should have sought the advice of a vitreoretinal specialist.

The defendant says, and I accept, that in fact maximum medical therapy was not achieved until 26 October 2008 when, on Mr Sharma’s instructions given on the phone in the early afternoon that day, oral Glycerol was added to a further dose of intravenous Mannitol.

I can now express my conclusions.  The clinical judgment in this case was whether to continue to treat the claimant’s elevated IOP medically, or whether surgery was required. By far the greatest part of the trial was devoted to this question.

In terms of the test to be applied in law, as explained above, the Bolam test is that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of doctors with the necessary skills. A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that would take a contrary view.  As Lord Scarman put it in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881F, “A doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice”.

Applying that test, I am satisfied that Mr Sharma was not negligent in pursuing medical treatment as he did on 24 October 2008. On the evidence as a whole, I am satisfied that this was a logical and justifiable clinical judgment. Whilst I accept that Mr Benson may have taken a different course, that cannot affect the fact that the course adopted by Mr Sharma was one which would have been taken by a responsible body of ophthalmological opinion. It follows that I reject the contention that surgery was mandatory or required.  For the same reason, I am satisfied that Professor Murray was not negligent in continuing the treatment when consulted on 25 October 2008. The principal reason for this conclusion is that whilst the elevated IOP involved risks for the patient, surgery also carried risks, and it was reasonable to regard the risks of surgery as outweighing the risks of medical treatment, albeit a responsible body of ophthalmological opinion may have taken a different view.

Failing to give proper advice as to the alternatives

The claimant’s case is that from around 11.00 hours on 24th October 2008, the defendant should have ensured that the claimant was advised that he required urgent surgical treatment to his left eye.  He asks for a finding to this effect.  For reasons set out above, in my view he is not entitled to such finding.

Citing Montgomery v Lanarkshire Health Board [2015] 2 WLR 768 (see above) the claimant seeks an alternative finding that from around 11.00 hours on 24 October 2008 the defendant should have advised the claimant that there were two options for the treatment of the intraocular pressure of the left eye.  The benefits and risks of, in particular, urgent operative treatment, should have been discussed with the claimant.  If that had been done appropriately then the claimant would have chosen to have had urgent surgical treatment which would have been undertaken by the afternoon of 24 October 2008 and, in any event, by late 24 October 2008 or early 25th October 2008.

The defendant responds that the claimant’s pleaded case is not that the defendant negligently failed on 24 October 2008 to set out all the possible treatment options to the claimant. That has never been pleaded. Equally, the claimant had never said in these proceedings (whether by pleading or witness statement) until he gave oral evidence that if he had been offered the option of surgery, he would have taken it.  Both points are, in my view, correct.  Up to trial, the claimant’s case summarised by Mr Benson in his witness statement was not that surgery was an “option”, but that it was “mandatory”.

The defendant submits that insofar as the claimant now runs an unpleaded case based on the legal duty to advise of alternative treatment options as set out in Montgomery, that case does not get off the ground. The high point of his case on this, the defendant says, is Mr Snead’s acceptance that the failure to discuss surgery as a possible option with the claimant on 24 October 2008 was regrettable. However, the key factor, the defendant says, is that neither Mr Sharma nor Mr Snead would have recommended to the claimant that he undergo surgery. Both would have recommended that he persist with medical therapy. As the claimant accepted when he gave oral evidence, he would have accepted the recommendation of the specialists who were treating him in hospital. Accordingly, the defendant submits, there is no merit in the claimant now seeking to advance what is effectively an unpleaded allegation, and it would be unfair to allow him to do so.

Having considered the submissions made on the pleading point provided at my request after the end of the trial, the position in my view is as follows.  Although this point is not pleaded, it was made clear on behalf of the claimant that the list of issues agreed prior to the trial beginning had to include the possibility of advice as to the possibility of surgery.  The trial proceeded on this basis, and the defendant was in a position to deal with the point.  I do not accept the defendant’s assertion that the claimant is barred on pleading grounds.

The position on the evidence is as follows.  Mr Snead said that the fact that there was no discussion with the claimant on 24 July 2008 of the possibility of surgery was regrettable.  He said that he would have discussed it with the patient, and his recommendation would have been to continue with the medical treatment.  He also would have explained the reasons for this advice.  As was pointed out on behalf of the defendant, Mr Snead did not say that he would have discussed the possibility of “urgent” surgery, as suggested in the claimant’s closing submissions.  However, I think that it was implicit in his evidence that he was referring to the possibility of surgery at the time, as opposed (for example) to waiting until after the claimant’s appointment with Mr Benson on the afternoon of 27 October before taking a decision.

As regards the claimant’s evidence, he said in oral evidence that had he been told of the possibility of having surgery he would have wished to have it.  However, he qualified his evidence by saying he would have followed medical advice.  I find that he would have followed medical advice.  In the context of this case, this was inevitable given the complexities of his condition. 

Mr Sharma’s evidence was that he would not have discussed the possibility of surgery with the claimant, because he did not think that any course other than medical treatment was appropriate. However, it follows from the evidence of Mr Snead that surgery was an alternative for consideration at this time, albeit he would not have recommended it. The position therefore is that a breach of duty has been accepted by the defendant’s expert in this regard. The question is what follows from such breach of duty.

The defendant contends that it makes no difference because the treating clinician, Mr Sharma, would not have recommended surgery. However, the claimant contends that the duty to advise is a duty to advise dispassionately (Montgomery at [104]), and that Mr Sharma could not have done this since he considered that surgery was, in effect, out of the question.  It is submitted that the question has to be answered by reference to what a reasonable vitreoretinal surgeon would have advised, rather than by reference to a particular individual.  As a matter of principle, I accept that submission.

Whereas in relation to the claimant’s primary case it is sufficient to hold that the views of Mr Sharma were in accordance with a responsible body of ophthalmological opinion, on this alternative case, on the factual premise that claimant would have taken medical advice, the Bolam test does not provide an answer. In the light of the parties’ submissions the court must, therefore, make findings as regards the advice that should have been given.

As explained above, the position on the evidence is that Mr Benson and Mr McHugh would have advised immediate surgery, whereas Mr Sharma and Mr Snead would have advised continuing to treat the IOP medically.  It is not easy for the court to choose between the views of these highly skilled surgeons. The question centres, in my opinion, on the balance of risk, and I consider that this was most cogently explained by Mr Snead.

Apart from questions of practicality, I am satisfied that to perform major surgery on the claimant on 24 (or 25) October 2008 would have been a major step to be avoided if possible. The consequent risk of damage to the optic nerve was an important factor, but taking the evidence as a whole I am satisfied that the risks of surgery (e.g. bleeding, cataract, loss of vision, and retinal detachment) were considerable and outweighed it.  The fact that the risks did not materialise when Mr Benson performed the operation on 28 October 2008 does not affect the matter, because that is with the benefit of hindsight.  Accepting the defendant’s case in this regard, I consider that the better advice, and therefore the advice which the hypothetical reasonable ophthalmologist posited by the claimant would have given, was to proceed to treat the IOP medically. I find that the claimant would have followed this advice.  This finding is reinforced by the fact that he was seeing his own surgeon on Monday.  I further find that by Monday morning, the treatment was beginning to work.

Accordingly, I conclude that the claimant cannot establish that this breach of duty caused any loss or damage.  The failure to give advice as to alternative treatment by surgery made no difference. Following the end of the trial I asked the parties for submissions on whether a more broadly based causative approach might be available to the claimant based on the decision in Chester v Afshar [2005] 1 AC 134.  However, the parties agreed that this decision is inapplicable.   

Did the fact that the operation was not carried out until 28 October 2008 make any, or any material, contribution to the claimant’s loss of vision in his left eye?

The next question is whether the fact that the operation was not carried out on 24 October 2008 but only on 28 October 2008 made any, or any material, contribution to the claimant’s loss of vision in his left eye.  Mr McHugh’s opinion is that the visual loss that developed after the first vitrectomy was primarily due to optic nerve damage, secondary to a prolonged and severe elevation in IOP in the early post-operative period. The delay in performing earlier surgery probably also allowed further progression of pre-retinal membrane formation, rendering the surgery that was eventually performed more complex with a compromised visual outcome. A sustained elevated IOP of over 40, he said, will cause a degree of permanent optic nerve damage after only a few hours.

Mr Snead’s evidence was that the raised IOP from 23 to 28 October will have had an effect on the perfusion of the left optic nerve in addition to any circulatory compromise from his pre-existing diabetic vasculopathy. In cross-examination, he clarified this by accepting that there would have been a degree of optic nerve compromise, the nature and extent of which would be impossible to quantify. He would assess the damage caused by the raised pressure in the context of this case as being minimal. Asked whether he accepted that the high pressures caused some damage, he said he would. There was however a difference here between damage to the optic nerve and damage to vision. The raised pressure, although worrying, and higher than one would have liked, was for a relatively short period of time, and would be expected only to affect peripheral (rather than central) vision, which was already affected by the proliferative diabetic retinopathy.

For reasons set out below, I do not accept Mr McHugh’s evidence as to the speed of the progression of pre-retinal membrane formation.  I would be disposed to accept the evidence of Mr Snead as to the effect of IOP in its entirety, but there is other significant evidence that must be taken into account. Following the second operation, Mr Benson wrote to the claimant’s GP on 19 November 2008 stating, “I am concerned that his poor vision may be the result of ischaemic damage caused by the very high intraocular pressure that was present for approximately 1 week prior to surgery”. A similar point was made in a letter of 22 January 2009.  This has the value of contemporary evidence, and I am satisfied it reflected Mr Benson’s opinion.

It is right to add that the evidence suggested that undue pressure produces a “cupping” of the optic nerve and Mr Benson accepted in cross-examination that he did not think that the claimant’s optic nerve head was particularly cupped.  Further evidence in this regard concerned the pallor of the optic nerve, but this evidence was not in my view sufficiently clear to draw reliable conclusions from it.  

Despite the views expressed by Mr Benson, on the evidence as a whole, and in particular the evidence of Mr Snead which was convincing, I do not consider that it is established that the cause of the loss of vision in the claimant’s left eye was the period he suffered of elevated IOP, as opposed to damage arising from his proliferative diabetic retinopathy. However, on the evidence as a whole, I consider it to be established that the elevated IOP made a contribution to the loss of vision which was more than minimal.

In this regard the claimant relies upon Bailey v Ministry of Defence [2008] EWCA Civ 883 in which it was said that:

“45.

Hotson was a case where the House of Lords held that the cause of the injury was the non-negligent falling out of the tree and that that injury would, on the balance of probabilities, have occurred anyway without the negligent delay in treatment; thus the negligent conduct made no contribution to causing that injury. …

46.

In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed.”

The defendant submitted this principle is inapplicable, because it can confidently be stated that the effect was minimal. However, on the facts as I have found them  I prefer the claimant’s submission in this regard.  It follows that I consider that the claimant has made good his causative case in this regard.

Would the claimant have lost vision in his left eye in any event by reason of retinal detachment from about April 2009?

Mr McHugh and Mr Snead both note that on review on 20 April 2009 there was an area of retinal detachment in the left eye. The position is summarised in the Particulars of Claim to the effect that “on the left an area of retinal detachment and folding was sketched, together with a number of retinal tears situated in the macular region”. I find that this probably occurred between February and April 2009, and that the retina remained detached.

However, the question is as to the significance of this, which gives rise to a further dispute between the experts.  The defendant’s case supported by Mr Snead is that the retinal detachment was unrelated to the treatment of the elevated pressure, and that even in the absence of the alleged negligence, the claimant would have lost useful vision within about six months of October 2008.

As described above, in his evidence Mr McHugh attributed the loss of vision to damage to the optic nerve.  In cross-examination, he said that immediate surgery would have significantly reduced the risk of detachment, and on balance his view was that surgery performed on 24 October 2008 would have produced re-attachment of the retina.  He expressed the view that pre-retinal membrane could have formed between 24 and 28 October 2008 making the surgery when performed more difficult.  Although retinal detachment can cause loss of vision, he said that with a healthy optic nerve, even total detachment will give some vision.

Mr Snead took a different view.  He said in evidence that when the retina detaches, there is a tearing effect on the rods and cones (the two types of photoreceptor cells in the inner layer of the retina) which means that simple re-attachment of the retina will not of itself restore vision. The macula is the part of the retina which is most densely packed with ‘seeing cells’, especially cones. The macula is responsible for central vision (the rest of the retina being responsible for peripheral vision). This is why, he says, breaks or detachments over the macula (as here) are particularly serious.

This issue is an important part of the defendant’s case, and is a difficult one for the court to resolve.  As to the relation between surgery and the retinal detachment, the defendant submitted a Part 18 Request asking whether it was the “claimant’s case that the persistent retinal detachment in the left eye is causally related to the alleged negligent period of raised intraocular pressure? If so, how?”.  The response was, “There is not a direct causal relationship between the negligent period of raised IOP and subsequent retinal detachment”.  This is repeated by Mr McHugh in his report.

It appears to me that this supports the defendant’s case, though it is right to repeat that Mr McHugh also says that there would have been an earlier opportunity in surgery for management of secondary pre-retinal membrane formation, which corresponds to his oral evidence.  However, this implies a significant difference in this regard over the four day period when the claimant argues that surgery should have happened, and when it actually did happen.  On balance, I prefer Mr Snead’s view, which was that the membrane removed in subsequent surgery was not new, and that by far the most likely explanation is that it was not possible to remove everything in the earlier operation in its entirety.

As to the oral evidence of Mr Benson, he said that the claimant’s left retinal detachment was a result of his disease, not the surgery.  It was not suggested that the note of his evidence in this regard taken by the defendant’s side during the trial was inaccurate: “Re retinal reattachment, you have to remember that C has ongoing eye condition, diabetes does not go away.  The retinal detachment was due to the retinopathy not surgery”.  Mr Benson also accepted that the failure of the retina after the January 2009 surgery was a major problem.

My conclusion on this important issue is as follows.  Although it was submitted for the claimant that following the failure to operate, the damage was effectively done, for reasons set out above I have not accepted this, except in the sense that the damage to the optic nerve made a contribution to the claimant’s loss of vision which was more than negligible. I find that the subsequent retinal detachment was unrelated to the elevated IOP, and I did not think that the claimant was really able effectively to answer the defendant’s case in this regard.  

I accept the evidence of Mr Snead that even if it had been possible to lower the intraocular pressure in the left eye sooner by earlier surgical intervention it is highly likely that the left visual function would have remained severely compromised as a result of the persistent retinal detachment which was not successfully repaired despite further surgery.  I cannot therefore accept Mr McHugh’s evidence that if surgery had been performed within 24 hours (whether of 23 or 24 October), the final visual acuity in the left eye would have been between 6/24 and 6/60.

The position as regards the right eye

As explained above, the operation on the claimant’s right eye was performed on 15 May 2013.  The issues are whether the loss of useful vision in the left eye affected the prognosis for the claimant’s right eye, whether directly or indirectly (e.g. by causing ophthalmic surgeons to be more reluctant in proceeding to vitrectomy in the right eye), and had earlier vitrectomy (from 2009 onwards) been performed in the right eye, what would the claimant’s visual acuity in the right eye have been. 

The claimant’s case is that having lost the vision in his left eye, the decision of Mr Benson and Mr Gregor, together with the claimant and his mother, was not to take the risks of operative treatment on the right eye until that became unavoidable.  Mr Benson was very much alert to that position and hence he took the precaution of referring the claimant for a second opinion from Mr Gregor.  The decision of the claimant, not wishing to risk the vision of his right eye in light of the catastrophic consequences which would flow with any complications which may arise in the context of having no vision in the left eye is, it is submitted, entirely understandable.  The fact that there was no vision in the left eye undoubtedly played a part in the considerations of his medical attendants.

On the 6 December 2012, Mr Benson wrote to the claimant’s GP that surgery to his right eye would be “very complex and we would be taking significant risks with Mr Barrett’s only seeing eye.  For that reason it must not be entered into [lightly] and it would be unwise to make any such move whilst Mr Barrett feels this situation is fairly stable and that is confirmed by the clinical findings)”.  The claimant’s case is that if he had maintained vision in his left eye he undoubtedly would have proceeded to operative treatment to his right eye at an earlier stage and with stabilisation of the right eye at an earlier time.

The claimant says that Mr Benson was clearly perturbed with the question of whether or not to operate on the right eye as is evidenced in the medical notes.  Despite the fact that he was a senior vitreoretinal surgeon he wished to get an external independent view.  There can be no reasonable issue, it is submitted, that if the claimant’s left eye had been in a reasonable condition and the right eye could have been stabilised by operative treatment, the claimant would have chosen to have had earlier operative treatment rather than wait to the point of effectively no return.

The claimant argues that Mr Snead has failed at any stage to make a proper assessment of the position in respect of the right eye, and failed to address the issue whether there should or would have been operative treatment to the right eye at an earlier stage.  The court should, it is submitted, accept the evidence of Mr McHugh which is that had the intraocular pressures been dealt with appropriately, in the right eye the claimant would have had visual acuities in the range between 6/38 and 6/60.

The claimant seeks a finding that if the left eye had been appropriately managed, then there would have been urgent surgery and earlier treatment undertaken of the right eye.  Such urgent treatment would have been around mid-2009 and would have been undertaken probably by Mr Benson or another vitreoretinal specialist. 

The defendant submits that the case as to the right eye has been developed by Mr McHugh, who stated in his report dated 11 March 2014 that if the surgical management of the left eye had achieved a more favourable outcome, earlier (date unspecified) surgery to the right eye would have been performed, with a final visual acuity of between 6/38 and 6/60, rather than the present level of 6/95. He repeated this in a “glib fashion” in the course of his oral evidence.

The defendant points to the content of the letter of Mr Gregor dated 21 October 2009 which makes no reference to the left eye. It submits that the risks of surgical intervention outweighed potential benefit. Had vitrectomy been clinically indicated in 2009, as Mr McHugh now says, then the court can be reasonably sure that Mr Gregor would have recommended it then, and so would Mr McHugh himself in his first report of March 2012 (when the claimant had already registered as severely sight impaired).

The defendant says that it is wrong to assert that Mr Snead did not deal with this issue.  He gave his opinion in the agreed agenda for the experts’ joint meeting.  He says that the left eye surgery was complicated by persistent post-operative haemorrhage and persistent post-operative retinal detachment. This may well have influenced the claimant’s confidence in a successful outcome for the right eye and is likely to have influenced the consultations regarding the timing of any surgical intervention.  In his oral evidence, Mr Snead referred to patients falling roughly equally into two different camps in this situation, essentially those reluctant to contemplate surgery until absolutely necessary and those who say “go ahead, doc, do what you can”. He emphasised that both were reasonable responses, but he did not feel that the period of raised IOP here in the left eye had affected the decision over when to operate on the right eye. Nor did he agree with Mr McHugh’s opinion that a better outcome would have been achieved with earlier right vitrectomy.

The defendant invites the court to find that there is no causal link between the alleged negligence and the loss of vision in the right eye, the latter being a consequence of the claimant’s aggressive proliferative retinopathy alone.

My conclusion on this issue is as follows. The claimant’s case as regards his right eye arises factually if, but for the negligent delay in performing surgery on the left eye, the claimant’s visual acuity in that eye would have been significantly better than it in fact was. I have rejected the claimant’s case in these respects, but should nevertheless set out my reasoning on the premise that such case is correct.

It is, I believe, common ground, in any event I am satisfied that once progressive diabetic retinopathy was established in 2006, it would be expected that vitrectomy surgery would have been required for both eyes.  I accept the claimant’s evidence that given the disappointing result of the left eye surgery, he was reluctant to embark on right eye surgery until it was really necessary. I consider that this was a reason for Mr Benson referring his case to Mr Gregor at Moorfields for a second opinion.

In his letter of 21 October 2009, Mr Gregor makes no reference to the claimant’s left eye. He says that the severe proliferative retinopathy in the right eye has now become completely inactive following extensive laser treatment. He says that whilst vitreosurgery may become indicated if and when the claimant developed further complications, “… for now, I would suggest that we observe him closely as his right vision has been stable for at least one year”.

It is correct that Mr Gregor goes on to say that, naturally, the claimant is not at all keen on any intraocular surgery at that point, reinforcing Mr Benson’s previous advice not to operate on the right eye at this point. However, there is no suggestion that this has influenced Mr Gregor’s view that surgery on the right eye was not indicated at that time. This was Mr Benson’s view as well. I reject the submission that the position as regards the left eye had any effect on the decision not to perform a vitrectomy on the right eye in 2009.

The claimant’s submissions relating to Mr Benson’s letter of 6 December 2012 are referred to above. However, the letter also refers to the fact that “… the rest of the retina is sitting down nicely and, in fact, the diabetic process does seem to be fairly settled at present”.  He goes on to say that if “he did require vitreo-retinal surgery then I would probably seek the further advice of Mr Gregor”. Again, there is no suggestion that Mr Benson thought that surgery was indicated at that this time. (This is not something he dealt with in his witness statement.)

Mr Benson’s letter of 21 March 2013 says that “recently the vision has slipped down and he has had a number of small bleeds. The area of retinal elevation has extended across the macular now and vision in his only eye is down at 6/60. I have talked this through with David and he would certainly be up for surgery if you felt this was appropriate”. As explained above, the patient was seen by Mr Charles of the Ophthalmology Department of Manchester Royal Eye Hospital in April 2013, who considered that surgery was indicated. It took place in May as I have stated.

As a matter of fact, I find that there was no causal link between the alleged negligence and the loss of vision in the right eye. I find that the loss of vision was solely the consequence of the proliferative retinopathy. I find that surgery on the right eye was carried out only when it was indicated, and that earlier decisions not to operate were indicated by the state of the right eye at the time.  In this regard, I prefer the evidence of Mr Snead to that of Mr McHugh. It follows that I do not accept Mr McHugh’s evidence as to the difference in visual acuity had an earlier vitrectomy been performed in the right eye.

Issue 10 set out above goes largely to quantum, and much has been agreed since the trial started.  The evidence was that the claimant was no longer able to drive prior to the first operation, and I make that finding. As regards the other matters identified, see below.

So far as quantum is concerned, the parties dealt with it on the basis that the claimant succeeded on his causation case, which has not happened. However, it is right that I should make findings on the issues that remained live by the end of the trial.

On that basis, I accept the basic submission made on his behalf, namely that on the visual acuities which Mr McHugh considers the claimant would have had absent the alleged negligence, he would have been able to lead an independent life, whereas he is unable to do so now.

Both parties correctly observed in closing that the imponderable factors in the case meant that even if the claimant’s case on liability and quantum was accepted in full, following trial the court would not be able to decide quantum in the sense of deciding on amounts. The parties asked the court to make findings with on the main outstanding issues, on the basis that with the court’s views the parties would be able to reach agreement, and I proceed on that basis.

The main outstanding issues are as follows:

I refer to what I say above about the claimant’s personal courage in facing his disability, and the immense support he has received from his family and friends.  I also refer to the factors that have made this case so difficult to decide.  However, on the evidence, and for the reasons stated above, I have concluded that this claim does not succeed.  I am grateful to the parties and their representatives for the considerable assistance that has been given to the court.