Crossman v St George's Healthcare NHS Trust

In the case of Chester v Afshar [2005] 1AC 134 the House of Lords decided by a majority of three to two to modify traditional causation principles in clinical negligence cases to vindicate the claimant’s right of choice and to provide a remedy for breach.

It was a case where the claimant had not been appropriately warned of the risks of surgery but the trial judge had not found that, if properly informed, the claimant would never have undergone the operation when the risks would have been the same. Hence, the failure to warn did not affect the risk and was not the effective cause of the injury sustained.

The present case raises a different factual scenario, where it is accepted that the risks of surgery were appropriately explained, but the hospital had been negligent in arranging for the Claimant to have surgery, when the surgeon’s intention had been to follow a conservative plan of treatment for three months and then review the patient with a view to surgery if conservative treatment was not successful.

It is the case for the Claimant that but for the hospital’s negligence he would not have undergone the operation when he did and that he is entitled to compensation either on conventional causation principles or on the basis of the decision in Chester v Afshar.

The facts of the case are mainly agreed. There are just a couple of discrete areas on which there is some significant dispute.

Mr Crossman, who was aged 63 at the time, began to suffer symptoms of numbness in his left arm, and pain and restriction of movement in his neck in May 2010. He consulted his general practitioner.

On the 26^th October 2010, he underwent an MRI scan of his cervical spine. This identified widespread degenerative changes and constitutional narrowing of the spinal canal. There was minor compression of the spinal cord at C3/4 and C5/6 and neuroforaminal encroachment (Footnote: ¹) was present at multiple levels bilaterally.

He was referred to Professor Papadopoulos at St George’s Hospital (“the Hospital”) and seen by him there on the 9^th February 2011. Various management options were discussed in the light of the MRI scan and the Claimant’s clinical presentation, including surgery. He explained the potential risks and benefits of surgery. However, he advised conservative treatment including physiotherapy at that stage with a review in three months’ time

Professor Papadopoulos subsequently wrote to the GP in the following terms –

“We discussed different options. The plan is for him to try conservative treatment first. I would be grateful if you could arrange some physiotherapy locally. He might also try a chiropractor himself. Will see him again in three months’ time. If his symptoms persist despite conservative management, we can proceed with a cervical foraminotomy (Footnote: ²). This procedure has a 90% chance of abolishing his arm problems versus 2% to 3% chance of complications including nerve injury, wound infection and in his case deep vein thrombosis. He will have to stop the Warfarin for a week before the surgery and only restart it three days after the surgery (Footnote: ³).

We will make a final decision during the next appointment.”

Despite this, Mr Crossman was put on the waiting list for surgery, immediately following the appointment and no further outpatient appointment was booked.

He attended his GP on the 24^th February 2011 to discuss his consultation with Professor Papadopoulos, but, at that time, the letter had not been received by the surgery. The GP note reads “they appear to be advising surgery for the neck”.

Two weeks later, on the 9^th March 2011, the Claimant received two letters from the Hospital. One asked him to attend for pre-operative assessment on the 23^rd March 2011, the other informed him that the Hospital wished to admit him to a ward in the Department of Neurosurgery on the 10^th April 2011.

He contacted the hospital believing that there had been a mistake, and was told that unless he kept his appointment he would be put to the back of the list.

The Claimant attended the pre-operative assessment. This was undertaken by Dr Thakur. Subsequently, there is a note in his GP records for the 28^th March 2011 of a telephone conversation that he had with his GP in which the arrangements for the operation were discussed.

On the 10^th April 2011, the Claimant was admitted to the Hospital for surgery. The surgery was carried out the following day, the 11^th April 2011 by Professor Papadopoulos assisted by Mr Corns, a neurosurgical registrar at the time (and now a consultant). He was consented for a cervical foraminotomy by Mr Corns. Mr Corns was concerned about Mr Crossman’s INR reading (Footnote: ⁴) of 1.5. His agreed evidence is that he strongly advised the Claimant to delay surgery. In his witness statement, he says at paragraph 12 –

“I particularly remember the contents of my discussion with Mr Crossman because he was very annoyed and upset by the suggestion that the surgery could be delayed, even though the delay was not caused by any fault on the part of the clinical team. Usually when patients are given firm advice to postpone their operation they accept that advice, but Mr Crossman did not accept the advice which he had been given, but was adamant that he warned to proceed with surgery that day which is very unusual.”

Having reviewed the MRI scans, Professor Papadopoulos decided to perform a laminectomy (Footnote: ⁵) as well as a foraminotomy, and Mr Crossman signed an amended consent form.

Unfortunately, although the operation appeared to go well at the time, and there is no suggestion that it was carried out negligently, the Claimant suffered radicular nerve root injury. It is agreed by the parties’ expert witnesses (Mr Todd for the Claimant, and Mr Byrne for the defendant) that the risk of this as a result of the operation is less than 1% and is probably of the order of 0.5%.

It is further agreed that, if the management plan had been followed as intended, the Claimant would have had to have the same surgery three months later, and that the level of risk would have been the same then as it was in April 2011.

It is admitted on the pleadings that

The Defendant’s pleaded case, though, is that whilst but for the negligence the surgery would have been delayed, this would not have materially affected the risk of damage to the C5 nerve root, and there is no causal link between the admitted negligence and the Claimant’s injury. It is also pleaded that the Claimant was himself negligent in not raising the fact that he had been recommended for conservative treatment with the Hospital staff.

The first area of dispute relates to what, if any, responsibility the Claimant has for the failure to follow the plan for conservative management and physiotherapy and the decision to undergo surgery on the 11^th April.

The second concerns medical causation and the views of the experts as to the chances that what happened intra-operatively on the 11^th April could have happened had the operation been performed on a different occasion.

In his witness statement, at paragraph 48, Mr Crossman says –

“I regret not asking more questions at the time about why it seemed like they had changed their minds about physiotherapy but I just trusted them and thought that they knew best.”

In cross-examination, Mr Whitting QC pressed the Claimant repeatedly as to why he had not questioned the change of plan. He pointed out to him that he had a number of opportunities to seek clarification – on the 23^rd March when he saw Dr Thakur for the pre-operative assessment, on the 28^th March when he spoke to his GP, and on the 11^th April when he was being advised by Mr Corns, for other reasons, to postpone the operation. All he had to say, suggested Mr. Whitting, was something to the effect – I thought I was going to have physiotherapy first and then I would see Professor Papadopoulos and we would decide whether I needed an operation. Mr Whitting suggested that the real reason he did not raise the matter was because he didn’t want to wait to see whether physiotherapy would be of benefit and preferred to have the surgery.

In relation to the pre-operative assessment on the 23^rd March, the following exchange took place –

“Q Okay, well why didn’t you mention it to Dr Thakur?

A Because I assumed that nothing had been arranged, that he had changed his mind and he put me down for surgery, because we discussed both items with both – I assumed that he has put me down, I put my trust in him, that he put me down for surgery instead of conservative management.

Q Surgery is not something to go into lightly, is it?

A It’s certainly not, no.

Q Why not just simply raise it and say: well, hang on, I thought the plan was physio and then to review and if that hadn’t worked out then surgery?

A I didn’t raise the issue with it because when they described to me it was, it was just a small incision, that’s all it was, and after that I researched that information and found it’s only a small incision. There was no real risk of operation, not the surgery I had.

Q Mr Crossman, I am not interested in what you did after this assessment, I am interested in why it is when you had been called in to see a doctor about surgery, you didn’t simply say to him: well, hang on, I thought the plan was for physio and for review and only then for surgery.

A Maybe I should have done, I just assumed that decision was made on my behalf.”

There were other similar exchanges. At the end of the Claimant’s cross-examination, I asked him about the situation just before the operation when he was advised by Mr Corns to postpone it –

“Q It would have been a natural thing to do to say: well, the plan had been that I was going to have physiotherapy anyway, rather than this operation.

A I suppose, yes. I could have raised it then, but I just accepted the fact that the operation was to be done to relieve the problem in my neck and it’s the only answer to the problem. I suppose in the back of my mind I couldn’t see how physio would benefit, because I had physio before this and that didn’t benefit. So I suppose really that’s why I didn’t raise the issue, because physio wasn’t going to benefit me.”

Mr Whitting then continued –

“Q That’s exactly what I was asking you before, Mr Crossman, because that made sense, you tried it before, it hadn’t worked –

A I suppose, it makes sense in that respect, yes.

Q And that’s why you didn’t insist on having it?

A Because we had already tried physio before this, before this had even come to the doctors and it hadn’t worked.

Q Okay, and that’s why you didn’t raise it?

A I suppose in the back of my mind, yes.”

Recent case law has placed much greater emphasis on the importance of the doctor’s duty to involve the patient in decisions relating to treatment; see Montgomery v Lanarkshire Health Board [2015] AC 1430, in particular paragraph 80.

In the context of the duty to provide the patient with information and to advise as to the material risks inherent in treatment, in Montgomery the Supreme Court considered whether any significance can properly be attached to a patient’s failure to question the doctor. The Court pointed out that it is the doctor’s primary duty to inform and without information, how can a patient be expected to ask questions. At paragraph 58, the Court made this observation of wider application to the doctor/patient relationship –

“….an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship between a patient and her doctor, whether in the time-pressured setting of a GP’s surgery, or in the setting of a hospital. Few patients do not feel intimidated or inhibited to some degree.”

The courtroom is also a place where parties and witnesses can feel intimidated or inhibited. I have no doubt that Mr Crossman felt daunted by being in a witness box and closely questioned by a skilled and forceful advocate. He struggled finding his way round the files of documents and was hard of hearing and appeared at times somewhat confused. He is not someone who finds it easy to express himself.

When he received the appointment letters from the hospital, and was then told when he rang the hospital that if he did not keep his appointment he would go to the bottom of the queue, it is unsurprising, in my view, that his reaction was not to question what was happening but to accept that arrangements were being made for him to have the operation rather than physiotherapy. Other patients might have reacted differently, but, in my judgment, the Claimant would not see it as his place to question the decision further and ask what had happened to the management plan agreed with Professor Papadopoulos.

Hence when he saw Dr Thakur for the pre-operative assessment, he raised no query about the change in plan. By the time he was admitted to hospital for the surgery, he would have prepared himself for the operation. As he explained in evidence, he was not hopeful that physiotherapy would have been of any benefit. By that stage he wanted his operation to proceed. Whilst some may have accepted the advice to postpone the operation, it seems to me to be a perfectly understandable reaction, on Mr Crossman’s part to say, in effect, “I am here now. I want to get it over with”. The final say, in any event, lay with Professor Papadopoulos, who was prepared to carry on and to operate.

In my judgment, the Claimant cannot be held at fault for not raising the change in treatment plan with the Hospital. Had he raised it and the mistake been realised, it is highly likely that the plan agreed between the Claimant and Professor Papadopoulos would have been reverted to and Mr Crossman would not have had his operation on the 11^th April 2011, but, in my judgment, the fact that he did not do so, does not absolve the hospital of its responsibility for the mistake and does not break the chain of causation that flows from it.

In his report, the Claimant’s expert, Mr Todd says in paragraph 92 –

“The literature which we have provides no firm understanding of why radicular injury occurs in the tiny subgroup of patients in whom it does occur. We only know that there [are] a number of different potential causes of such injury in different ways. For this reason, it is likely that if the operation had been carried out on a different occasion, on the balance of probabilities, any of the factors as explained above could have presented differently and the injury would not have occurred.”

The factors Mr Todd lists include slight differences in surgical technique, the choice of instruments, the patient’s position on the table, and the extent of the surgical compression.

In their joint statement, the experts agreed that these factors would potentially have been present had the operation been carried out three months later. Asked the question whether, had the Claimant come to surgery at a later date, on a balance of probabilities would the injury sustained on the 11^th April 2011 have occurred, the experts replied to the effect that the answer was a matter for the Court.

It might have been wiser had they left it there, but in later correspondence they both attempted to answer the question and came up with diametrically opposing answers.

Mr Byrne, the Defendant’s expert, in a letter of the 6^th October 2016 answered the question in this way –

“I can see no reason why the Claimant would not have had exactly the same outcome from his surgery had he had the operation three months [later]. Mr Todd and I have agreed …. that the reason for the Claimant’s outcome from his surgery is probably a result of manipulation of the nerve root and residual lateral canal stenosis. In my opinion, whilst this would not have been predictable pre-operatively, this would have occurred whenever the Claimant had had his operation, so would have occurred had his operation occurred three months [later]”.

Mr Todd responded by letter on the 27^th October 2016. In that he said –

“We usually do not know the cause of nerve root injury and that is probably because there are several different interacting causes which on a particular occasion come together to cause the harm. It is probably not the same combination of causes on different occasions. Mr Byrne and I have agreed that the most significant causes were the residual stenosis and manipulation of a swollen nerve root. In my opinion it is unlikely that the same degree of residual stenosis would have been present on a different occasion, more likely there would have been no residual stenosis.

Nerve root swelling has a cause or causes. A nerve root may be swollen because of a primary compressive pathology. Swelling may be caused, or exacerbated by the surgical procedure. Intraoperative causes include the position of the patient on the table, traumatic injury from a surgical instrument, excessive manipulation of the nerve root, use of a bipolar diathermy (to stop bleeding) close to the nerve root, a transient drop in the blood pressure and no doubt causes we do not understand. In my opinion it is improbable that the cause, or a combination of causes, that caused the nerve root injury in this case would have occurred on a different occasion.”

I think there is a real danger here of straying too far into the realms of speculation.

The sort of factors that Mr Todd identified are constant inherent variables in the risk itself. It is akin to saying that the same thing never happens again in precisely the same way. For example, if you bake a cake or take a penalty shot at goal, the result won’t be precisely the same every time. The fact that things went wrong this time is no predictor of things going wrong on any other occasion; indeed, because the risks are so low, it almost certainly would not go wrong on a different occasion. In other words, the Claimant was unlucky and, as the risks were so low, would probably have not been unlucky had the operation been performed as originally planned in three months’ time.

Mr Byrne, though, set out to explain that, in his opinion having identified the likely causes of the Claimant’s residual symptoms, it is possible to say that had the operation been carried out in the same way on a different occasion, he would have been likely to suffer the same complications.

At the end of his cross-examination, I asked Mr Byrne –

“Q So are you actually saying that, given those two factors, if they are the attributable cause of the continuing symptoms, that on the balance of probabilities the outcome had been the same in any event?”

A.

I am saying that, yes, my Lord.”

If Mr Byrne is right, it follows that it would not matter when the operation was performed, the outcome was always likely to be the same. Hence causation could not be made out on conventional principles and, only, by the application to the facts of the decision in Chester v Afshar.

The risk that we are talking about in this case, as any patient would be advised pre-operatively, is very small indeed. Whilst I accept, on the basis of Mr Byrne’s evidence, and with the benefit of hindsight, that the risk for the Claimant may have been somewhat higher, I do not accept that it was increased to such extent as would be required to find that it is more likely than not that it would have materialised whenever he had the operation.

In summary, Mr Crossman was unlucky. Had he had the operation on a different occasion, on the balance of probabilities the operation would have been successful.

In the light of my finding that the Claimant was not at fault, but for the admitted negligence of the Hospital the Claimant would not have had the operation when he did. Had he had the operation on a different occasion, he would not have been advised that he was at any greater risk, and, although the risk was in fact higher in his case, it was not one which was more likely than not to be realised. Hence, in my judgment, the claim succeeds on conventional “but for” causation principles.

Having found in the Claimant’s favour on conventional causation principles, I do not have to resolve the question of whether the Claimant would also be entitled to succeed on the basis of the decision in Chester v Afshar. Much of the discussion in closing submissions, though, turned on the application of the decision in and, in deference to the submissions and should this case go to appeal, I will briefly consider the claim under that head.

The decision in Chester v Afshar was intended by the House of Lords to be a narrow modification to traditional causation principles. Lord Steyn (at paragraph 24) described it as a “narrow and modest departure” to vindicate the patient’s right “to autonomy and dignity”. Lord Hope of Craighead based his decision on “the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on”and the fact that in that case “the injury was intimately involved in the duty to warn.” (paragraph 87). He held that as a matter of legal policy

“justice requires that Miss Chester be afforded the remedy which she seeks, as the injury which she suffered at the hands of Mr Afshar was within the scope of the very risk which he should have warned her about when he was obtaining her consent to the operation which resulted in that injury.”

(paragraph 88). Lord Walker of Gestingthorpe said that without some extension of existing principle “the surgeon’s important duty would in many cases be drained of its content.”

In two powerful dissenting judgments, Lords Bingham and Hoffman took the contrary view of legal policy. Lord Bingham said that he did not think that the law should seek to reinforce the right to be appropriately warned

“by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant.”

(paragraph 9). Lord Hoffman said that he could see a case for a modest award of compensation where a patient had not been appropriately warned of the risks “to vindicate the patient’s right to choose for herself”, but he felt that the law of torts was “an unsuitable vehicle for distributing the modest compensation which might be payable.” (paragraphs 32-34).

In subsequent cases, the Court of Appeal has declined to extend the Chester v Afshar principle outside the field of clinical negligence and emphasised its limited application in cases where there has been a breach of the doctor’s duty to advise a patient of the disadvantages and dangers of the proposed treatment so as to enable the patient to give informed consent; see White v Paul Davidson & Taylor (A Firm) [2004] EWCA Civ 1511; Beary v Pall Mall Investments (a Firm) [2005] EWCA Civ 415; and Meikeljohn v St George’s Hospital NHS Trust [2014] EWCA Civ 120.

I was referred to two cases in which Chester v Afshar was applied; Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB), a decision of Cranston J., and Jones v Royal Devon & Exeter NHS Foundation Trust (unreported, judgment handed down 22^nd September 2015), a decision of Recorder David Blunt QC, in which he found for the Claimant on both conventional and Chester v Afshar causation principles. In Birch, Cranston J. held that there was a failure to discuss alternative methods of imaging and their attendant risks and properly to obtain the patient’s consent to an angiogram. In Jones, there was no failure to warn the patient of the risks of the operation, but the Recorder held that there was an infringement of her right to make an informed choice as to whether, and if so when, and by whom to be operated on as she was not informed of a change in the identity of her surgeon until just before she was due to enter the theatre.

Miss Beale contends that in this case the Claimant was deprived of the opportunity to have physiotherapy and then to consider the position in consultation with Professor Papadopoulos before undergoing surgery. Hence, his right to make an informed choice was infringed.

In my judgment, it is important to keep in mind the exceptional and limited nature of the extension to conventional causation principles that the majority in the House of Lords intended to make in Chester v Afshar. A failure properly to warn of the risks of surgery is fundamental as it vitiates the consent itself, and removes the right of autonomy and dignity of the patient to make an informed choice. It can be said that a failure to inform the patient in due time of the change in the identity of the surgeon in whom you are placing your trust to carry out the operation falls into the same category, as again it removes the patients right of choice.

Each case must though depend on its own facts. The scenario in this case falls, in my view, into a different and lesser category. A mistake was made by the Hospital in the implementation of the treatment plan, in consequence of which the patient had the operation earlier than would otherwise have been the case. He was aware of the change of plan. For reasons that can readily be understood, he did not question this, after phoning the hospital. He was duly warned of the risks of surgery and the surgery was carried out by the surgeon he had consulted.

In my judgment the case stands or falls by conventional causation principles and modification of the normal approach to causation would not be justified. If my decision that the case succeed on conventional causation principles is right, happily, no modification is required or justified in any event.

The outcome is that there will be judgment for the Claimant. Damages have been agreed, subject to liability, in the sum of £92,500. Accordingly, there will be judgment for that amount.