KILKENNY -V- GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUST
HHJ Ralton handed down judgment last week in a clinical negligence consent case where the importance of evidence on causation was emphasised once again.
The claimant (C) suffered a shoulder fracture falling from a ladder. Breach of duty was accepted by the Trust in that the precise nature of the fracture had not been correctly identified when C presented at hospital and he had not been advised that one of the options for treatment was surgery. C’s fracture was treated conservatively.
C’s pleaded claim was that he should have been advised to have surgery and would have achieved a better long term outcome. The bulk of his case fell away at the joint statement stage when C’s expert accepted that his shoulder function was as good as it would have been with surgery. The claim nonetheless proceeded on the basis that C would have recovered more quickly with surgery.
The Trust defended the claim on causation. It relied on literature showing that there was no short or medium term advantage to surgery for this particular type of fracture. Although D accepted that C should have been told of the option of surgery it was argued he would have been advised that there was no advantage to surgery and there were various risks of complications. As a result it was not accepted that C would have chosen to have surgery if properly advised and it was denied that the literature supported C’s case that he would have recovered more quickly.
HHJ Ralton found for the Defendant Trust. C had not given evidence that he would have chosen surgery if properly advised and the Trust’s expert evidence that it was unlikely C would have recovered more quickly with surgery was preferred.
Follow the link for the full judgment Judgment – Kilkenny v Gloucestershire Hospitals
Laura Johnson acted for the successful Defendant instructed by DAC Beachcroft LLP