A 47 year old woman from Hillingdon has been awarded £4.4m by the High Court for her life-time care needs after she was left tetraplegic following an operation on her spine which took place at Mount Vernon Hospital, part of the Hillingdon Hospitals NHS Trust, in 2011.
In one of the first judgments of its kind, lawyers acting on behalf of Tracy Hassell successfully argued that she had not given informed consent as she was not been made fully aware of the risks related to the surgery, specifically the risk of paralysis, by the surgeon.
The case represents one of the first successful legal challenges using the Montgomery ruling.
In the case of Montgomery v Lanarkshire Health Board  Nadine Montgomery was a woman with diabetes whose son was born with serious disabilities after shoulder dystocia during delivery.
The doctor did not tell Ms Montgomery of the risk of shoulder dystocia, despite her increased risk as a diabetic. The doctor said that she did not routinely discuss the risk of shoulder dystocia with women with diabetes for fear that, if told, such women would opt for a caesarean section.
In their judgment on the Montgomery case, the Supreme Court justices ruled that a doctor is “… under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatment … the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risk of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed if the information provided is comprehensible”.
Tracy Hassall was aged 41 at the time of her operation on her spine in 2011, she was a head of year at a local secondary school with three children of her own.
She had begun to suffer pain in her lower pack a couple of years before and after a visit to her GP she tried physiotherapy which just made the pain worse.
An MRI scan identified spondylolisthesis, a condition where a bone in her vertebra had slid forward over the bone below leading to her spinal cord or nerve roots being squeezed. She was referred to the spinal orthopaedic surgeon Shaun Ridgeway at Hillingdon hospital in February 2009.
In his evidence Mr Ridgeway told the Court that Mrs Hassell had exhausted conservative management of the pain by way of analgesics and physiotherapy and was keen to explore surgery.
In May 2009 Mrs Hassell had surgery to her back which improved the pain but her left foot and leg pain was no better and this developed into what Mrs Hassell described as a dull pain in her hip and groin.
She underwent a hip operation conducted by a consultant orthopaedic surgeon in May 2011 to repair a labral tear in the hip.
Mrs Hassell reported much improvement after this operation in relation to the pain in her hip and was delighted with the results. However, she continued to suffer from pain in her neck, blurred vision, left ear pain as well as the neck pain.
At the end of June 2011, Mrs Hassell visited Mr Ridgeway again and he recorded that one of her discs in her vertebrae was protruding and another had degenerated.
Mrs Hassell said that following this consultation she was told that further surgery was required to remove the disc and replace it with a titanium one, but that in the worst case scenario the spine would have to be fused although that could only be decided during the operation when the damage was clear.
Mrs Hassell said that there had been no discussion about other treatment options such as the use of different pain killers or physiotherapy. She said that it was described as quite regular surgery and she agreed to have the operation. Had she known about the risks of paralysis, Mrs Hassell argued, she would not have had the operation.
On the day of the operation in October 2011 Mrs Hassell went to the hospital with her husband. Whilst her husband left to get something for Mrs Hassell from the shop, Mr Ridgeway arrived with the porter and nurse and Mrs Hassell was told that she was going to the operating theatre.
Mrs Hassell said she felt nervous and had not said goodbye to her husband. She was given a consent form to sign, but she described everything as a rush and she did not pay attention to what it said. She did not recall any discussion about paralysis.
On waking from the operation Mrs Hassell was paralysed on her right side with left sided weakness.
In a letter of complaint about the operation dated 8 February 2012 Mrs Hassell said: “what was not discussed or explained at any time was there could be a chance that this routine operation could and has left me as a tetraplegic”.
In his conclusion handed down today (6 Feb 2018), at the High Court, Mr Justice Dingeman said: “…I find that Mr Ridgeway used reasonable care and skill in carrying out the operation, and that I am unable to identify the cause of Mrs Hassell’s spinal cord injury. I find that Mrs Hassell did not give informed consent to the operation, and that if she had been given information about material risks and conservative treatment Mrs Hassell would not have agreed to the operation on 3 October 2011.”
The judge also said: “…whatever Mr Ridgeway’s strengths as a surgeon when carrying out the operation … Mr Ridgeway was not a good communicator about the risks of operations.”