What happens if a patient undergoes surgery earlier than planned and he suffers an adverse outcome? Can he succeed on conventional grounds or must he rely on Chester v Afshar – or even on Montgomery? In Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) the court addressed the options.

In 2010 Mr Crossman developed symptoms from degenerative changes to the spine and spinal cord compression. He was referred to Professor Papadopoulos at St George’s Hospital. Following discussion of the various treatment options, including surgery, Professor Papadopoulos recommended a conservative approach with a review in three months. He told him about the risks of surgery. They agreed to make a final decision at the next appointment.

Despite this Mr Crossman was immediately put on the waiting list for surgery. He received an appointment for an operation. On contacting the hospital he was told that, unless he kept his appointment, he would be put to the back of the list. He was admitted to hospital and consented by neurosurgical registrar Mr Corns. The surgery took place the next day, with Professor Papadopoulos being assisted by Mr Corns.

Unfortunately Mr Crossman suffered a radicular nerve root injury, the risk of which was around 0.5%. There was no suggestion that the operation was carried out negligently. The hospital admitted it was negligent by failing to follow the treatment plan but argued that this negligence did not cause the injury.

It was agreed that if the plan for conservative treatment had been followed, Mr Crossman would then have needed the same surgery, with the same risks. The experts were also asked whether the injury would, on the balance of probabilities, have occurred at surgery on a later date. They agreed that was a matter for the court.

The court held that if the same surgery, with the same risks, had occurred three months later then Mr Crossman would not have been injured: “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.” Mr Crossman had just been “unlucky”.

It was negligent to operate three months early; that surgery caused the injury; so Mr Crossman succeeded on conventional “but for” grounds.

So what of the alternative argument? Mr Crossman also contended that he was not afforded the right to follow the treatment plan before considering whether to go ahead with surgery. As such, his right to give informed consent was infringed. It is compulsory to shoehorn a reference to Montgomery into every clinical negligence decision at the moment, and sure enough there it is.

The court disagreed. Mr Corns obtained informed consent for the surgery. Though the surgery took place at an earlier time than envisaged, Mr Crossman was aware of the change of plan.