Charlotte Jones succeeds in a claim for failure to discuss alternative surgical technique
Charlotte Jones instructed by Thompsons Solicitors recently acted for a Claimant (Mr Adrian Mills) who in December 2012, underwent brain surgery at the John Radcliffe Hospital, Oxford. The operation was intended to debulk an asymptomatic left frontal glioma which had been found incidentally when he was having investigations for headache. In the course of the procedure, Mr Mills suffered a catastrophic bleed which led to him suffering a stroke in the left anterior cerebral artery territory. He was left severely physically and cognitively disabled and lacked capacity to litigate or manage his financial affairs, with his wife acting as his Litigation Friend. He had been medically retired as a fireman and was in need of significant care.
A liability only trial took place in March 2019 before Karen Steyn QC, sitting as a Deputy High Court Judge. Mr John de Bono QC instructed by DAC Beachcroft represented the Defendant Trust. Mr Mills attended the whole trial in his wheelchair but was unable to give evidence.
The Claimant relied on the factual evidence of Mrs Mills in relation to the pre-operative advice and what her husband would have chosen, had he been offered a choice of technique for the operation he agreed to have. The Defendant called the neurosurgeon who saw Mr Mills pre-operatively and consented him, Mr Puneet Plaha, together with two senior consultant neurosurgeons who were called in to assist when the haemorrhage occurred and could not be controlled. Both parties called expert neurosurgeons (Mr Kirkpatrick for the Claimant and Mr Grundy for the Defendant).
Breach of duty and causation issues were complex. Mr Mills alleged that Mr Plaha:
i) performed the surgery negligently; and/or
ii) failed to take reasonable care to ensure that Mr Mills was aware of the material risks involved in the proposed procedure and/or of any reasonable alternative or variant treatments.
In her detailed judgment in April 2019 the judge held that:
i) it was not negligent for Mr Plaha to perform the surgery using a minimally invasive endoscopically assisted open craniotomy technique; but nevertheless
ii) the Claimant succeeded on liability, on the basis that he had not been given the alternative of the surgery being done with a larger craniotomy and use of a microscope rather than an endoscope.
She found that if he had been given the choice, Mr Mills would have opted for the more conventional technique and had this been the technique adopted by Mr Plaha, the bleed would not have occurred.
The Defendant argued that once the bleed occurred the craniotomy was enlarged and therefore the outcome would have been the same, since the only real difference was the reduced access to blood vessels and other structures with the smaller craniotomy. It also contended (following the Court of Appeal decision in Khan v Meadows  EWCA Civ 152) that the damage (the stroke) was outside the scope of the duty to warn. Both arguments were rejected. The Trust’s argument that there should be an issue based costs order also failed and Mr Mills recovered the whole of his costs, together with a substantial interim payment enabling him to meet his immediate needs for suitable accommodation and professional care.