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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Holdsworth v Luton And Dunstable University Hospital NHS Foundation Trust [2016] EWHC 3347 (QB) (21 December 2016) URL: https://www.bailii.org/ew/cases/EWHC/QB/2016/3347.html Cite as: [2016] EWHC 3347 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
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TRACY HOLDSWORTH |
Claimant |
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- and - |
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LUTON AND DUNSTABLE UNIVERSITY HOSPITAL NHS FOUNDATION TRUST |
Defendant |
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Ms Erica Power (instructed by Capsticks Solicitors LLP) for the Defendant
Hearing dates: 8-10 November 2016
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Crown Copyright ©
His Honour Judge Freedman :
i) It was negligent per se to carry out a UKR ("the first issue").
ii) In any event, the claimant did not give informed consent for the UKR ("the second issue").
iii) The femoral component used in the TKR was too large ("the third issue").
I shall consider the evidence in relation to each of the three issues in turn.
The Law
"I myself prefer to put it this way: that he is not guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in this particular art… putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, mainly because there is a body of opinion that would take a contrary view."
"Differences of opinion and practice exist and will always exist in the medical and other professions. There is seldom only one answer exclusive of all others to problems of professional judgment. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence."
"I agree with the submission to the extent that, in my view, the Court is not bound to hold that the attendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice…
The use of these adjectives – responsible, reasonable and respectable – all show that the Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the Judge before accepting a body of opinion as being responsible, reasonable and respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to questions of comparative risks and benefits and have reached a defensible conclusion on the matter."
"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant unfortunately could be held liable for negligence… In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular where there are questions of the assessment of the relevant risks and benefits of adopting a particular medical practice, a reasonable view pre-supposes that the relative risks and benefits have been weighed by the experts in forming their opinions but if, in a rare case, it can be demonstrated that professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As a quotation from Lord Scarman (see above) makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide a benchmark by reference to which the defendant's conduct falls to be assessed."
"… 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 the patient is aware of any material risks involved, 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 risks, or the doctor is or should reasonably be aware that the patient would be likely to attach significance to it."
"… The doctor's role involved dialogue, the aim of which is to ensure the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form."
Background
"I have gone through the arthroscopic findings carried out at the time of the surgery and these show that there is some chondral flaps that have been debrided on the medial femoral condyle and there is a little bit less changes in the patella-femoral joint region. I have explained to her that the key thing at present is to alleviate her pain and thus I have given her a local steroid injection into the right knee and also referred her for some urgent physiotherapy. Hopefully this will dampen things down. She should maintain her anti-inflammatories and simple analgesia and ice the knee. I will review her in six weeks and if things have improved then a course of Hyalgan injections may be appropriate. If not, we can consider going down the route of a further re-arthroscopy with perhaps a microfracture with however no significant guarantees. She knows that eventually she will most likely require a unicompartmental knee replacement…"
"She has been suffering from a lot of pain in her right knee. She had extensive discussions about the treatment with Mr Kalairajah at her last visit. She wanted today to straight away go ahead with a unicondylar knee replacement instead of having any Hyalgan injections or arthroscopy. She is well aware of all the complications of this procedure.
After a long discussion we decided we would bring her back in three weeks' time when Mr Kalairajah will be back in the clinic and we will make a final decision after involving him."
Evidence re. First Issue
Expert Evidence re. First Issue
i) The radiology, in particular the MRI scan, would not of itself justify a UKR (Mr Sweetnam agrees with this).
ii) The changes viewed at the arthroscopy were minimal and not indicative of osteoarthritis (albeit that he accepted that there was a grade III lesion in the medial compartment).
iii) The hyaline cartilage has no nerve fibres and, accordingly, the lesion in the cartilage could not have been responsible for the pain suffered by the claimant.
iv) No purpose was to be served in removing normal bone which was not arthritic.
v) The cause of her pain was a matter of speculation. As such, and absent any medical or scientific explanation, joint replacement surgery cannot be justified.
i) A lesion in the cartilage can give rise to pain in the knee joint. He explained that it has a cushioning effect on the bones as they move against one another and loads are transmitted in the vertical plane.
ii) In support of his contention that damage to the cartilage can give rise to symptoms, he said that he had operated on such patients in the past (albeit that he now adopts a very conservative approach to surgical intervention).
iii) A grade III lesion was significant (he described it as being approximately the size of a 10p piece).
iv) Generally, there is a range of legitimate opinion and that it was neither illogical nor irresponsible for Mr Kalairajah to carry out UKR in these circumstances.
Analysis of First Issue
The Second Issue
Third Issue
"As these components come off the shelf, if one is to be driven by the measured AP distance the 'apparent' oversizing mediolaterally would not be an issue that he would seek to correct."
That to my mind implies that Professor Fairclough did not regard the size of the component as a serious problem. Moreover, at question 22(5), Professor Fairclough says this: "He would possibly have used a smaller size." That observation is not consistent with an assertion that no reasonably competent orthopaedic surgeon would have chosen a component of this size.
Conclusion