Nadia Whittaker successfully defends Rotherham NHS Foundation Trust against allegations that its Consultant Podiatric Surgeon was negligent and failed to obtain informed consent for revision bunion surgery
Nadia Whittaker instructed by Charlotte Kistell-Gough and Keith Blundred of DAC Beachcroft LLP successfully defends on liability a claim with an agreed value of £870,000 concerning alleged negligence in respect of a Keller’s Arthroscopy undertaken in 2010. The Claimant was represented by Richard Baker.
The Claimant developed a bunion on her left big toe. In 2009, she underwent bunion surgery performed by Mr Gary Boon, Consultant Podiatric Surgeon, employed by the Defendant. Although the surgery was not successful in reliving her pain, the Claimant did not complain about it. She returned to Mr Boon in 2010 and was counselled about her options for revision surgery. She consented to Keller’s Arthroscopy, which was performed in 2010. This was also unsuccessful in relieving her pain. The subsequent chain of events led to the Claimant losing first her left great toe and then undergoing left below knee amputation.
The Claimant’s case about the surgery in 2010 was put on 3 basis: (i) that Keller’s Arthroscopy should never have been offered to her because it was so unsuitable for her that it was negligent to offer it; (ii) that she did not give informed consent to that surgery because the leaflets she was given and the advice offered in consultation was inadequate in failing to draw attention to the likely outcome, and did not recommend the fusion operation that she ought to have had; and (iii) that the operation itself was negligently performed, because the soft tissue that should have been interposed between 2 bones so as to create a false joint and prevent painful bone on bone friction, was not interposed.
As there was a significant dispute of fact about the events that were of considerable age by the time of the trial, Recorder Simon Myerson QC approached the evidence in accordance with the principles in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd  EWHC 3560.
The Judge’s assessment of the Claimant, and to a lesser extent of her husband, was that the enormity of what has happened to her has tended to overwhelm them, leading them to genuinely believe in certain things that were undoubtedly wrong. The Judge considered the Claimant to have been a vulnerable witness, who required frequent breaks and had difficulty answering some questions. Accordingly, the Judge was not prepared to penalise the Claimant for not giving evidence of matters that might otherwise constitute a lacuna in her case, unless he was satisfied that it was within the Claimant’s capabilities to be able to understand the need for that evidence and to articulate it whilst in the witness box.
On the issue of whether Keller’s Arthroscopy should have been offered at all, the Judge preferred the evidence of the Defendant’s expert, Mr Smith, to the evidence of the Claimant’s expert, Mr Chell. Mr Chell did not offer any literature in support of his assertion that it was negligent to offer Keller’s Arthroscopy and his experience was not found to be a reliable guide in this context. Mr Smith, on the other hand, offered literature that demonstrated that Keller’s Arthroscopy was a reasonable option. Furthermore, Mr Smith’s evidence was preferred despite the Claimant’s arguments that it should be given less weight in light of his retirement from the NHS practice in 2006.
On the issue of consent, the Judge found that the contemporaneous records were to be preferred to the account given by witnesses many years later. Based on his interpretation of the contemporaneous records, the Judge found that the Claimant was provided with the leaflets about her options and an adequate discussion about the risks and benefits did take place contrary to the Claimant’s lack of recollection about it. Furthermore, the Claimant refused fusion and did so for rational reasons that mattered to her. The Judge rejected the Claimant’s argument that she should have been told that fusion was the “gold standard” or that she should have been otherwise persuaded by Mr Boon to accept a procedure she did not want. In any event, the Judge found that the Claimant would not have chosen fusion even if an attempt to persuade her had been made.
It was agreed by the parties that the question of whether the procedure was or was not negligently performed turned on an issue of fact as to whether or not the Claimant experienced pain straight after the operation. The Claimant’s evidence on this issue was rejected as it was not consistent with the picture that emerged from her medical records.
The Judge observed at the end that his ‘conclusion that Mr Boon was not negligent did not in any way affect his genuine sympathy for the appalling events to which the Claimant has been subject’. He added, ‘That she has asked whether anyone was to blame for what is, otherwise, the cruellest series of misfortunes, is eminently understandable and natural.’
Read the Swain v Rotherham NHS Foundation Trust  judgment.