Clinical negligence – Consent to treatment – Neurological disorders – Duty of care

Janet Birch v University College London Hospital NHS Foundation Trust: QBD (Mr Justice Cranston): 29 September 2008

The claimant (B) claimed damages against the defendant NHS trust for injuries that she sustained as a result of alleged clinical negligence in the performance of invasive surgery.

B had been admitted to hospital displaying atypical symptoms of vascular third nerve palsy. The consultant doctor recommended that she undergo an MRI scan to exclude the possibility that she was suffering from either a posterior communicating artery aneurysm or cavernous sinus path­ology. There were no MRI slots available to B at that hospital, so her consultant requested that she be transferred to a neurology ward in a specialist hospital operated by the trust; later, she was transferred to a neurosurgical ward at that hospital. The trust’s neurosurgeons decided to perform a catheter angiography; a mildly invasive procedure that had increased risks for people in B’s position. The associated risks of angiography were explained to B, who then signed the relevant consent form. Subsequently, there were complications with surgery that resulted in a stroke.

B submitted that: (1) the decision to perform the catheter angiogram that led to her stroke was negligent; there had been no proper assessment of her history and condition and no proper risk benefit analysis of how her condition should be investigated; no reasonable body of doctors would have proceeded to perform a catheter angiography rather than an MRI scan; (2) the trust negligently failed to disclose the comparative risks of MRI scanning to her.

Held: (1) There was, at the time, no consensus within the medical profession as to whether MRI or angiography was the better imaging method for diagnosing aneurysms of the type B might have had. There were certainly other large and responsible medical units that would have performed angiography in the same circumstances. Furthermore, the relevant neurosurgeon had undertaken the relevant risk benefit analysis before concluding that the urgency of the case required angiography. That was a decision that could, in the circumstances, withstand logical scrutiny as a practice accepted by reasonable medical professionals, Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 QBD and Bolitho (Deceased) v City and Hackney HA (1998) AC 232 HL applied. The decision not to use MRI was not negligent.

(2) If there was a significant risk that would affect the judgment of a reasonable patient, then, in the normal circumstances, it was the responsibility of a doctor to inform that patient of that risk so as to enable him to determine for himself which course he should adopt, Pearce v United Bristol Healthcare NHS Trust (1999) ECC 167 CA (Civ Div), Chester v Afshar (2004) UKHL 41, (2005) 1 AC 134, Bolam and Bolitho applied, Sidaway v Board of Governors of the Bethlem Royal Hospital (1984) QB 493 CA (Civ Div) considered. By logical extension of that principle, the duty to inform a patient of significant risks would not be discharged unless and until a patient was made aware that fewer or no risks were associated with another available and alternative treatment.

In the present case, B had been informed of the risks involved with catheter angiography but not the comparative risks of MRI. Although there was no requirement that a doctor should disclose comparative risks of alternative treatments in every case, there were special circumstances in the present case that justified the imposition of such a duty. B had entered a neurosurgical rather than a neurology ward under a recommendation that she undergo MRI and would have selected the option of undergoing the less invasive procedure had she been properly appraised of the comparative risks. Accordingly, B had been subjected to an unnecessary procedure that had caused a stroke; the trust’s failure to discuss the implications of the various imaging methods and the comparative risks rendered the trust liable to B for breach of duty.

Judgment for claimant.

James Badenoch QC, John Gimlette (instructed by Leigh Day) for the claimant; Grahame Aldous QC (instructed by Hempsons) for the defendant.

Conflict of laws – Future loss – Personal injury claims – Road traffic accidents

(1) Lauren B (2) Tyler B (3) Noah B v Mark B: QBD (Preston) (Judge Platts): 29 July 2008

The court was required to determine as a preliminary issue whether English or Spanish law should be applied to issues in an action for damages for personal injury brought by the claimants against the defendant (D), which arose out of a road traffic accident in Spain.

The parties were a British family resident in Britain. The first claimant and D were husband and wife and the second and third claimants were their children. They had arranged car hire for a holiday in Spain through a British company. The car was Spanish and was provided by a Spanish company; the rental agreement was between D and the rental company and was subject to Spanish law. Shortly after leaving the Spanish airport in the car, it collided head-on with another vehicle as D was driving on the wrong side of the road. The claimants were all injured, the second claimant very seriously, and claimed damages. D admitted liability but contended in his defence that, pursuant to the Private International Law (Miscellaneous Provisions) Act 1995, the applicable law was that of Spain. Judgment was entered against D, leaving the issue of quantum, in particular whether the second claimant, a minor, could claim damages for future loss of earnings as a head of loss under Spanish law.

Held: Section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995 provided that the general rule was that the applicable law was that of the country in which the events constituting the tort had occurred, which in the present case was Spain. It was necessary to identify the issue in relation to which the general rule would be applied or displaced; in the present case it was whether the second claimant’s future loss of earnings was recoverable.

Weighing up the factors in section 12 of the act, an important factor in favour of Spanish law was that the accident had occurred in Spain. In addition, the claimants suffered their immediate losses there, in that they were injured there, and the first and second claimants were treated there for some days. Less important factors were that the other vehicle in the accident was Spanish, and that the hire agreement and the hire car were Spanish. The fact that the insurers were Spanish was not of overwhelming weight: who was liable to pay for the claimants’ damage through a contract of insurance was one step removed from the immediate consequence of the tort. Factors in favour of English law were that all the parties were English nationals resident in England, and had only been in Spain for a week’s holiday. The tortious act was that of D, an English national, and the consequences of it, as far as the present claim was concerned, were visited upon English nationals.

As far as the second claimant was concerned and, to a lesser extent, the first claimant, the consequences of the tort would be felt for a significantly longer period in England than in Spain; for the second claimant, for the rest of his life. In relation to the main issue, that of the second claimant’s future loss of earnings, it was undoubtedly a loss that would be suffered in England. It was relevant that, although the hire and insurance contracts were Spanish, the arrangements for the hire were made in England through an English broker and paid for with English currency. Those factors meant that it was inevitable that the Spanish car hire company and its insurers must have been aware of the possibility, if not the likelihood, that an English family in those circumstances would use a Spanish car for their holiday in Spain. Weighing up all those factors in the balance, there was no doubt that the general rule should be displaced in favour of English law, Roerig v Valiant Trawlers Ltd (2002) EWCA Civ 21, (2002) 1 WLR 2304 applied, Edmunds v Simmonds (2001) 1 WLR 1003 QBD and Harding v Wealands (2006) UKHL 32, (2007) 2 AC 1 considered.

Preliminary issue determined in favour of claimants.

Mr Chapman (instructed by Pannone) for the claimants; Miss Wyles (instructed by Pritchard Englefield) for the defendant.