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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Price v Cwm Taf University Health Board [2019] EWHC 938 (QB) (15 April 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/938.html Cite as: [2019] EWHC 938 (QB) |
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HIGH COURT APPEAL CENTRE CARDIFF
On appeal from the Cardiff Civil Justice Centre
Order of HHJ Petts dated 31 August 2018
County Court case number: B90CF028
2 Park Street, Cardiff CF10 1ET |
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B e f o r e :
____________________
David Price | Appellant |
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| - and - |
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Cwm Taf University Health Board |
Respondent |
____________________
Charles Bagot QC and
Vanessa
McKinlay (instructed by NHS Wales Shared Service partnership) for the Respondent
Hearing dates: 6th, 7th March 2019
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Birss :
Price's
medical negligence claim arising out of three operations on his right knee carried out on 15th February 2011, 26th November 2011 and 30th April 2012 at the Prince Charles Hospital in Merthyr Tydfil. The conducting orthopaedic surgeon was Mr Sharma. The first two operations were arthroscopy procedures and the third was a partial knee replacement using an Oxford Unicompartmental prosthesis. After the third operation, Mr
Price
had ongoing and persistent pain and Mr Sharma referred him to another surgeon at Llandough Hospital. Mr
Price
had a full knee replacement on 20th May 2013.
Price's
situation and what he had been through, nevertheless he held that the claim should be dismissed.
Price
to that further aspect had not been obtained. However this part of the claim failed because the judge also held that if the consent process had been gone through properly then Mr
Price
would have had the microfracture procedure in any event. I refused permission to appeal on this issue on paper and the point was not pursued further. There is not now any appeal relating to the first operation.
Price's
case was that an arthroscopy was not indicated for a patient in his position, was contrary to the NICE Guidelines and was a pointless operation to perform on him. An aspect of this point was another issue about consent, in that the consent form did not record any benefits for the operation and did not inform Mr
Price
that it was not indicated by the NICE Guidelines. Mr
Price
sought permission to appeal on these findings. I gave permission on paper. The matter will be addressed below.
Price's
case at trial and on appeal is that the femoral component of the prosthesis was installed in such a way that it was misaligned. The manufacturer's specification permits the component to be aligned +/- 10° to the relevant reference axis. Mr
Price's
case was that the component was in fact aligned at about 17° or more. That was based on a composite X-ray image dated 15th October 2012 which was referred to at trial as the Long Leg image. The defendant's case was that the femoral component was not misaligned. The judge decided that the Long Leg Image was not one on which reliance could be placed. He also held that the relevant angle was no more than 6°. Accordingly the femoral component had not been negligently installed and the claim for the third operation failed. As a result the overall claim was rejected. On appeal Mr
Price
contends that the judge erred in
various
ways in his decision about the angle. I gave permission to appeal on that point.
Price's
counsel's speech the only issues are the two grounds I have mentioned. It is common ground that if the appeal on either or both of the second or third operations succeeds then there would need to be a further hearing to decide quantum and causation if the matter cannot be agreed. In the context of this case the sum arising from the second operation would be relatively modest but that is no reason not to examine the issue properly.
The appeal
v
Millenium Insurance Co. Ltd [2018] EWCA 2403 Coulson LJ considered the principles applicable to appeals on a finding of fact. He set out a number of passages on the point: paragraph 114 from the judgement of Lewison LJ in Fage
v
Chobani [2014] EWCA Civ 5 which includes the well known observation about a judge's reasons; paragraph 67 from Lord Reid's speech in Henderson
v
Foxworth [2014] UKSC 41; and paragraphs 39 and 40 of Longmore LJ in Grizzly Business Ltd
v
Stena Drilling Ltd [2017] EWCA Civ 94. After that Coulson LJ summarised the position as follows:
"10. In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding."
Second operation
Price's
first arthroscopy had been performed in February 2011. At that time he was working as aircraft engineer at GE Aircraft Engines. By 2nd May Mr
Price
was still off work due to a problem with his wrist, which was due for surgery on 26th May 2011. In September 2011 one of Mr Sharma's registrars saw him. The relevant passages from the clinic letter are quoted in the judgment at paragraph 29. Mr
Price
was extremely upset as things had got much worse after his first operation. The letter records that the registrar, Mr Sharma and Mr
Price
had discussed the possibility of knee replacement and also lifestyle modification and changing the nature of his job. Mr
Price
did not wish to change his job. The second arthroscopy was performed some weeks later.
Price
was not a typical patient with osteoarthritis in the knee given his comparatively young age (he was 52 at the time of the first arthroscopy) and found that Mr Sharma was reasonably motivated by a desire to postpone carrying out knee replacement surgery given the implications this might have for Mr
Price's
employment.
Price's
behalf on appeal are that the operation was not indicated at all and that the consent process was not done correctly, bearing in mind the omissions from the consent form. In effect the appeal puts together the question of whether carrying out the operation was negligent with the issue of consent.
v
Emery Reimbold [2002] EWCA Civ 605 had been followed, albeit that an application for permission to appeal had been made to the trial judge. I gave permission on paper but also invited the appellant to consider inviting the judge to give further reasons. The appellant's solicitors wrote to the court but by the time of the hearing of this appeal they had received no reply. However shortly after the hearing the parties received a supplemental judgment from the judge dealing with the issue. I invited and received written submissions from both parties on any points arising. The appellant's case was that the supplemental judgment did not alter his case on appeal. There is no need for a further oral hearing. I have taken the written submissions into account in deciding this appeal.
i) In the main judgment the judge failed to address consent properly and made no finding. There was no evidence MrPrice
consented. No risks/benefits were ever documented or advised to him. The consenting process and the signed consent form were wholly inadequate.
ii) The decision to undertake the operation was flawed because the procedure was not indicated and was contrary to the NICE Guidelines. The judge was wrong to suggest in paragraph 63 of the judgment that failing to follow NICE Guidelines was not prima facie evidence of negligence. This is wrong as a general proposition and was wrong in this case.
iii) Mr
Price's
knee was degenerate and already required knee replacement surgery, which was inevitable in due course. Postponing a replacement in favour of a different procedure under general anaesthetic could only be justified if there were real gains to be achieved and could only be properly consented to if the patient understood and agreed to seek to achieve them.
Viewed
objectively there were no such gains and none are suggested in the consent form. The judge excused this as an "error" but could only identify a single reason actually offered namely to put right the frayed cartilage from the first operation. Mr
Price
was not given the information necessary to make a reasoned choice and Webb
v
Barclays Bank [2001] EWCA Civ 1141 applies.
iv) In finding as the judge did in paragraph 66 that while the chances were low there was a chance of delaying knee replacement surgery further, which was clearly in Mr
Price's
best interests, the judge adopted a paternalistic approach which had been discredited in Chester
v
Afshar [2004] UKHL 41 and Montgomery
v
Lanarkshire Health Board [2015] UKSC 1.
Price.
In paragraph 100 the judge went on to consider an alternative case and rejected that too. The appellant's case is:
i) While an appeal court may take a second judgment into account (Rochev
Chief Constable of Greater Manchester [2005] EWCA Civ 1545), nevertheless, Michael Hyde
v
J D Williams [2000] EWCA Civ 211, [2001] PNLR 233 is authority for the proposition that it is inappropriate to go back to the trial judge for clarification or amplification many months after the original judgment was delivered; and in Aerospace Publishing
v
Thames Water Utilities [2006] EWCA Civ 717 the court warned of the danger of ex post facto rationalisation by a judge later providing such amplification.
ii) The findings do not alter the case on appeal. The findings should be treated with caution for the reasons set out in (i). Also they are not understood since the respondent did not cross-examine Mr
Price
on the relevant basis. In any event they are unsupported.
The treatment decision
Price.
The judge was entitled to do so for the reason he gave, namely the unconvincing change in Mr Rickman's evidence and his rejection of the submission on Mr
Price's
behalf that Mr Weale was a "hired gun" (paragraph 68).
"Overall, while Mr Sharma was not in the mainstreamview
in carrying out a further arthroscopy on the claimant bearing in mind the NICE Guidelines, he was within a reasonable body of orthopaedic surgeons who would reasonably have carried out such a procedure."
Price's
catching within the knee as relevant mechanical locking. Therefore, the submission on Mr
Price's
behalf is that in effect the arthroscopy was being used as a treatment for osteoarthritis but that is contrary to the NICE Guidelines.
Consent
Price
from the operation and the state of the consent form was simply due to error and not indicative of a situation in which there were no benefits. The judge also held that the reason for the operation which is set out in a clinic letter was a potential benefit to Mr
Price.
That was to trim any frayed cartilage from the microfracture in the first operation.
Price's
behalf, based on an analogy with Webb, comes down to a submission that Mr
Price
ought to have been told that the operation was not in accordance with the NICE Guidelines, that he was not so told and therefore he was not given the information necessary to give informed consent. Therefore this is a return to the discredited paternalistic approach (c.f. Montgomery and Chester).
Price
as a result of that surgery.
Price
but I am not convinced this distinction justifies putting to one side the importance of personal autonomy and the need for patients to decide for themselves whether or not they would submit to a particular treatment. Although harm is the focus of much of the reasoning in the two authorities, I note the reference to dialogue and to anticipated benefits in paragraph 90 of the speech of Lord Kerr and Lord Reed in Montgomery.
Price
and if it was true (as is submitted on Mr
Price's
behalf) that this operation was pointless and had no benefits at all; and if it was also true (as is submitted) that Mr
Price
was not properly informed of that absence of benefit when asked to give his consent; then it seems to me those circumstances would
vitiate
the consent Mr
Price
had given.
Price
and the appeal against that finding has failed. As to the consent process itself, I will start by addressing the main judgment without reference to the supplemental judgment. The first point is that the judge did not make an express finding that the potential benefits of the procedure were discussed with Mr
Price
at the point when he signed the consent form. However it is clear from the main judgment as a whole, including the reference in paragraph 66 itself to the clinic letter which does record a dialogue with Mr
Price
which included potential benefits, that the judge did not believe there was any flaw in the consent process itself. On the contrary his judgment was that the absence of a reference to potential benefits in the document was attributable to error rather than being evidence that the operation really was being performed for no reason at all. In other words reading the main judgment on its own, although he did not spell it out, the judge must have been satisfied that Mr
Price
had given his informed consent, which will have involved a discussion of the potential benefits. The evidence was sufficient to allow the judge to reach such a conclusion and therefore there is no reason to disturb that on appeal.
Price
to have given informed consent in these circumstances he had to have been additionally and expressly informed that the operation was not in accordance with the NICE Guidelines. There is certainly no suggestion that he was so informed and so if this is a good point the consent process was flawed. The only authority cited in support of the proposition was R (Rose)
v
Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) in which the CCG was found to be have been obliged to provide clear reasons for not following NICE Guidelines. However I do not accept that such a public law duty can or should be transposed by analogy into the process of obtaining a patient's informed consent. The appellant's skeleton argument also refers to Bolitho
v
City & Hackney Health Authority [1998] AC 232 but that case is not concerned with the question arising here about what needed to be put to Mr
Price
as part of the consent process.
Price's
personal autonomy or
vitiated
Mr
Price's
ability to make decisions for himself.
Third operation
Price
again saw Mr Sharma. The letter to his GP records that Mr
Price
continued to have significant pain in his knee and was on restricted duties in a
very
demanding job which he wanted to carry on doing for as long as possible. A uni-compartmental knee replacement was discussed and Mr
Price
was added to the waiting list for that surgery. It was performed on Mr
Price
on 30th April 2012. The judge held that Mr Sharma was sufficiently experienced and trained to be able to carry out the procedure.
visible
in X-ray images but it contains a thin radiopaque element which shows up as a thin line under X-rays.
.png)
view
from the front) and the right hand diagram shows the lateral projection. The dark parts are the metal components. The meniscal bearing is not shown. The manual specifies the acceptable limits of the position and size of the components. The relevant specification in this case relates to line A/A. The manual specifies that the acceptable limits for the femoral component relative to the femur for A/A are "<10° varus - <10° valgus". In this context this means 10° side to side in the plane of the anterior projection diagram above. A/A is the line of the axis of the pin of the femoral component.
valgus)
or bow-legged (i.e.
varus).
Mr
Price's
legs are
valgus.
.png)
"Postoperative Radiographic Assessment
Good postoperative radiographs are necessary as a baseline for comparison with later films and to allow 'quality control' of the surgical technique.
For these purposes, the standard methods of aligning the X-ray beam are not sufficiently accurate, nor repeatable enough. To assess the positions of the two metal components, the X-ray beam must be centred on one component and aligned with it in two planes. The resulting projection of the other component can then be used to deduce their relative positions.
Radiographic Technique
Anterior Projection
In the anteroposterior projection, the patient lies supine on the X-ray table and the leg and the X-ray beam are manipulated under fluoroscopic control until the tibial component appears exactly end-on in silhouette, and the radiograph is then taken (fig. 47). In this projection, the alignment of the beam with the flat orthogonal surfaces (horizontal tray andvertical
lateral wall and keel) allows great accuracy and reproducibility.
Lateral Projection
[…]"
Price)
and Dr Wilson (called by the respondents). He noted that on some issues Mr Rickman and Mr Weale deferred to the radiological evidence although they had their own
views
about what the images showed.
view
which was the composite x-ray of three images taken on 15th October 2012 and stitched together digitally.
Price
lying supine. It shows the knee and some of the femur and tibia. The keel of the tibial plate appears as a line, which indicates it runs broadly into and out of the plane of the image. For the femoral component both the longer arc of the component and the shorter arc are
visible,
indicating that the component is turned slightly relative to the way it appears in figure 47 above.
view
was taken when Mr
Price
was standing up. The pelvis and both legs are
visible.
Unlike the 1st May 2012 image, in the Long Leg image the hole in the keel of the tibial plate is
visible.
That does not mean the plate has moved. It indicates that the X-ray beam is at a different orientation relative to the tibial component from its orientation in the 1st May image. The femoral component in the Long Leg image appears effectively as a rectangle, similar to figure 47 above and different from the 1st May 2012 image.
Price
drew attention to the fact that simply by looking at the Long Leg image, it appears that the axis of the femoral component is pointing in quite a different direction from the axis of the femur. In my judgment, beguiling though it is, that submission should be resisted. The interpretation of these X-rays is a matter for suitably qualified experts, or (which is really the same thing) for a judge once they have assumed the mantle of a suitably qualified expert with the assistance of appropriate expert evidence. Armed with that education the court may well be able to see and understand what the expert is talking about but that is quite a different matter from just looking at the pictures and reacting.
view
did not meet the Oxford radiographic criteria. As the judge also drew attention to, in re-examination Dr Euinton stated that the reason he had not said in the joint report that the best image for measuring alignment was the Long Leg
view
was because the image of 1st May 2012 was the best of the knee
views
whereas the Long Leg
view
was different and taken for a different reason. The point was that this evidence in re-examination was aimed at trying to explain an apparent inconsistency in Dr Euinton's evidence between the agreed statement and his approach to the angle of misalignment based on the Long Leg
view.
The agreed statement was in answer to the question: "which if any radiographs meet the radiographic criteria for the assessment of alignment of an Oxford implant and why?
view
there was rotation of the knee on both projections such that it was not possible to make a reasonable assessment of the alignment of the implant. He did accept that to look at gross alignment of a component then a long leg image or an image with more bone at any rate was needed. Therefore, as the judge also noted in paragraph 82, Dr Wilson had also moved away from the simple position of the radiograph of 1st May 2012 being the best for measuring alignment. However the judge's
view
was that Dr Wilson maintained that the images were
very
rotated and if there was malpositioning or rotation of lower limbs during the long leg images then there was no way reliably to accommodate this. It is said that in this respect the judge misunderstood Dr Wilson's evidence. I will return to that below.
Price
had persistent pain requiring revision surgery. The judge was entitled to do so because such symptoms were a recognised though rare non-negligent complication.
Price's
behalf that the court should be working from the Long Leg image. He gives three reasons for that conclusion stating that any one of which would be sufficient. The reasons are:
"Firstly, the long leg image does not comply with the Oxford Manual and I agree with the Defendant that when considering allegations of clinical negligence, the court should be concentrating on the requirements of the Manual rather than judging using imaging that does not comply.
Secondly, the majority of the literature that looked at angles of components did so using images of the knee and not long legviews,
showing that the long leg
view
is not an accepted way of measuring an angle in such a situation.
Thirdly, the rotation of the leg in the long legview
in this case, as shown by the position of the patella and the
visibility
of the hole in the keel of the tibial component, means that the angle cannot be measured reliably."
[layout added]
variance
permitted by the Oxford manual. Therefore Mr
Price's
claim failed.
Price's
behalf both paragraph 86 and 87 are challenged. Nevertheless counsel for Mr
Price
accepted that if the challenge to paragraph 86 does not succeed, then the appeal must be dismissed because Mr
Price's
case would fail on the burden of proof without the Long Leg
view.
There were other arguments aside from the Long Leg
view,
including submissions based on attempting to derive an angle consistent with Mr
Price's
case from the 1st May 2012 image, but on the evidence as a whole, without the Long Leg
view
the appellant cannot credibly establish his case that the angle is more than 10°. That is why counsel for Mr
Price
was right to accept as he did that the appeal fails if the argument on paragraph 86 fails.
i) The first reason is wrong because the fact the image does not comply with the manual is not a good reason not to use it as evidence of what in fact the relevant angle is. The evidence of Dr Euinton and Dr Wilson as well as Mr Rickman was the long leg
view
was the best imaging
view
for assessing the position of the femoral component relative to the reference axis.
ii) The second reason is wrong because a significant portion of the literature used longer leg
views
and a significant number were silent as to which method was used. One paper (Gulati) referred to a weakness in this data because they did not have the benefit of long leg
views.
iii) The third reason is wrong because the judge misunderstood the evidence on the effect of rotation. It was the evidence of Dr Euinton that taking into account rotation could only increase the angle from 17° and not reduce it. Dr Wilson and Mr Rickman agreed with this and Mr Weale did not demur.
iv) In any event, the judge wrongly misunderstood the limited relevance of the 1st May 2012 image which was not produced under fluoroscopic control either and did not allow for reliable measurements of the angle of the femoral component.
v)
Further the judge failed to appreciate the relevance of the position of the keel of the tibial component when measuring gross alignment and failed to appreciate the significance of a second document from the manufacturer (Biomet) dated 2016 which supported the use of long leg
views.
view
was not in accordance with the Oxford radiographic criteria. That is not the issue. The question is whether that fact alone is sufficient to justify setting aside that image. Counsel for Mr
Price
argued that this alone is not a sufficient reason for discounting the Long Leg
view
altogether. Effectively the argument is that the presence of the radiographic criteria in the manual does not mean an image which does not satisfy them contains no information relevant to the question of what the angle of the component actually is. In the abstract that may be so but the judge had evidence, for example from Mr Weale, to support his conclusion. Mr Weale said measuring the axis of the femoral component on that radiograph was "completely the wrong thing to do" and said "I don't think it's an appropriate radiograph to make measurements of
varus
or
valgus
alignment because it doesn't fulfil the strict criteria of the manual". However Mr Weale was not a radiologist. Turning to a radiologist, Dr Wilson also gave evidence that the reason the manual was
very
insistent on angles was because they got "nonsense pictures if we were slightly out of alignment". The point is not that the presence of radiographic criteria in the manual gives them a relevance, and if that is what the judge had meant then that would have been an error. However the point is that the radiographic criteria in the manual are there for good reasons. That is what the judge was referring to. The judge had evidence on which to base his finding. The fact that there was other evidence going the other way does not mean his finding was not open to him. I reject this challenge to paragraph 86.
views
which show more bone than the 1st May 2012
view
("longer" leg
views),
that some papers are silent on the matter and that one paper which studies the alignment of the relevant components does mention as a limitation in its study the lack of full length radiographs for measuring alignment (Gulati (2009)). However having been through all this evidence, in my judgment it is plain that the judge's summary of the import of the scientific literature in paragraph 86 was a conclusion which was open to him on the evidence. I am not certain the first and second reasons are really independent of each other nor do I think either could stand alone if the other was falsified but that is not what happened.
Price's
behalf it is submitted that rotation could only ever increase the misalignment angle and so whatever angle was measured in the Long Leg
view
(at least 18°), that represented a minimum and therefore proves that the femoral component was aligned at more than 10° to the axis. This was Dr Euinton's evidence at trial, which he sought to demonstrate using straws. In that respect he had moved away from the position in the joint report that he had agreed there was no way to reliably accommodate malpositioning or rotation of the limbs in the long leg images. It is submitted that Dr Wilson accepted this in cross-examination. In other words the case for Mr
Price
is that the radiologists were in agreement about the minimum angle point.
view
meant the alignment of the femoral component could not be assessed but he was not the radiologist and as the judge recognised, the radiology was the key.
Price
regarding the third operation. The contrary submission for the respondents was that the evidence in Dr Wilson's cross-examination (which does start with the word "yes" after the question about the minimum angle) had to be seen in the context of what Dr Wilson went on to say afterwards. What Dr Wilson went on to say was that the Long Leg
view
was used for getting the overall alignment of the leg and not for assessing the implant. He said the "AP close up
view"
(which is what the 1st May 2012 image is but the Long Leg
view
is not) is used to the see the
varus/valgus
position of the femoral component.
view
was not useful for assessing the implant because of the problem of rotation. That is how the judge characterised Dr Wilson's evidence in paragraph 82 of the judgment (before the last sentence about the joint report). It was something Dr Wilson went on to maintain despite the evidence about a minimum angle. Therefore the judge did not misunderstand Dr Wilson's evidence. Having heard all the witnesses, it was open to the judge to reject reliance on the Long Leg
view
in this way and, as part and parcel of that, to not place weight on the minimum angle point.
Price's
behalf, the judgment ought to have mentioned it. If it had, then the error in the last sentence of paragraph 82 about Dr Euinton's evidence would not have been made. However as I have explained, I am not satisfied that that error or the point itself demonstrates the judge reached a conclusion which was not open to him on the evidence.
Price
is that one cannot say that the angle is less than 10º. That is not enough to succeed on appeal without the Long Leg
view.
Conclusion
Price and what has happened to him. Nevertheless I dismiss the appeal.