In a decision to be welcomed by med-mal Insurers and healthcare providers, the Court of Appeal has rejected a claim that the Claimant did not give her informed consent to surgery. In what is the ninth piece of med-mal litigation to come before the Court of Appeal this year alone, this latest decision shows that claims based on consent remain a fertile area for dispute.

Background

In the case of Sandra Maria Correia v University of North Staffordshire NHS Trust [2017] EWCA Civ 356 the Claimant received advice on a three stage operation to remedy a recurrent neuroma in her right foot. She was told that surgery would involve exploration to locate the suspected neuroma followed by excision of the neuroma and then relocation of the nerve end. Following surgery, the Claimant continued to suffer from pain and this developed into chronic regional pain syndrome. The Claimant brought a claim in respect of negligence in the performance of the operation itself and one based on a lack of consent from the information provided to her at the initial consultation.

At first instance, Mr Recorder McLoughlin found that the operation had been performed negligently (there being no evidence that a nerve relocation was performed) but that causation was not met and that the negligent surgery had not caused the Claimant's ongoing pain or suffering.

Informed consent

At appeal, the Claimant argued that she had consented to a three stage procedure: exploration, excision and relocation. She argued that she had not been warned of the material risks of the operation if a crucial step was omitted (the nerve relocation). The Claimant sought to bring herself within the remit of Chester v Afshar [2004] UKHL 4 in that there was a failure to warn her of the risk of injury, and that had she been advised she would not have undergone the procedure. On this basis, she argued that she should not have to show that the negligent treatment had caused damage (an argument that she failed on at first instance).

At appeal, Lord Justice Simon did not agree that the negligent omission of the third stage of the operation negated the Claimant's consent. The negligent failure to perform the third stage of the operation did not make it a different operation for the purposes of consent, or one for which specific consent was required. Further, the Claimant's case was distinguished from Chester v Afshar because there was no evidence that the Claimant would not have undergone the operation and deferred it, or sought the opinion of another surgeon. There was no such assertion either in her Letter of Claim or in her pleaded case, nor did it form part of her evidence. The Claimant's material evidence did not support this aspect of the causation argument.

Implications

This follows on the heels of Webster and Thefaut in med-mal litigation this year on the issue of consent, following Montgomery. Helpfully the Court of Appeal has confirmed, in terms, that a patient does not need to be advised of the risk of injury if a procedure were to be negligently performed. There would have been far-reaching implications for med-mal Insurers if the Court of Appeal had allowed this appeal, and found that informed consent is negated based on a negligent act in the course of surgery.

If you wish to discuss this article in more detail, please contact Fadzai Smith on +44(0)117 918 2695 or fadzaismith@dacbeachcroft.com.