Nadia Whittaker successful in defending a £4 million informed consent claim
Nadia Whittaker instructed by Elena Goodfellow (Bevan Brittan LLP) successfully defends Mr Matthew Edwards, Consultant Ophthalmic Surgeon, against allegations of negligence by the Claimant, Ms Rebecca Lochrie, in respect of a failure to obtain her informed consent for Laser-assisted in situ keratomileusis (LASIK) surgery to correct vision problems. The claim for over £4 million in damages for corneal neuralgia is dismissed by His Honour Judge Baddeley sitting as a High Court Judge following a trial over 6 days.
Background: the Claimant was shortsighted and wore spectacles/contact lenses to correct her refractive error since early 20s. She found contact lenses uncomfortable to wear and wore them mainly in the evenings and weekends. She was interested in laser eye surgery and the possibility of eliminating her need for spectacles or contact lenses. In January 2016 (aged 28 years), she visited Optical Express with a view to explore the possibility of laser eye surgery: however, she was “not reassured by the prospect of undergoing surgery at the back of the shop”. Having done further research, the Claimant came across the Sheffield Vision Centre where the Defendant worked on a private basis alongside his NHS practice. She booked herself for a consultation, which she attended on 26 February 2016. As part of this consultation, the Claimant had an assessment by an optometrist and an examination/discussion with the Defendant. She was advised that she was a good candidate for LASIK surgery. There was a dispute between the parties as to the extent of the conversation that took place between the Claimant and the Defendant on the issue of the risks of LASIK surgery. The Claimant’s case was that she was told that LASIK surgery was “a very safe procedure” and that “If there were problems, they were minor things and nothing that couldn’t be easily managed”. She alleged that the issue of dry eyes was not mentioned at all. She booked the LASIK surgery for 10 March 2016 and paid for it on that day. The Claimant signed a consent form, which set out a variety of risks: however, she alleged that she had not read it and was not asked if she had read it before she was asked to sign it.
Outcome of surgery: following the surgery, the Claimant began to experience floaters in her vision and, subsequently, dry eyes. By September/October 2016, she developed pain, light sensitivity and visual disturbances and her eyes were “sticking to their lids”. She continued to suffer with disruptive dry eye symptoms, burning pain in the eyes, excessive tears, visual disturbances and photophobia. Her symptoms were diagnosed as corneal neuralgia, a rare and poorly understood condition. She claimed that she was unable to perform her work as a civil servant although her employer was still trying to find ways of making reasonable adjustments to enable her to work at the time of trial and 7 years after the index event. The Claimant contended that she was likely to lose her career at the civil service and claimed loss of earnings and pension of around £1.5 million along with a similar sum for care and case management. She also claimed £770,000 for medical treatment.
The Claimant’s case: she contended that the Defendant only mentioned to her the risk of dry eyes after the surgery. She alleged that he failed to provide her with information on the risk that LASIK surgery could exacerbate any pre-existing dry eye problem (which she believed she had) and to inform her how severe this condition could be (including the potential impact on function and ability to work). She also alleged that he failed to take adequate history from her, which, if taken, would have indicated to the Defendant that she had pre-exiting dry-eye issue, ocular pain, meibomian gland dysfunction, anxiety and depression and an additional risk factor in that she was a frequent user of VDU. The Claimant contended that this warranted a more in-depth discussion about the risks and the severity of the outcomes. Her case on causation was that, if advised of any risk, however short term or long term, she would not have agreed to the surgery.
The Defendant’s case: liability was denied. The Defendant provided the Claimant with a wealth of information, including sending her ahead of the first consultation a copy of “Your Guide to Refractive Surgery”, which outlined some of the risks. He also provided her with the Consent Form after the index consultation but well before the surgery, which outlined the material risks in some detail. More importantly, it was the Defendant’s case that he had a detailed discussion with the Claimant on 26 February 2016 in which he advised her of the risk of dry eye symptoms, glare and halos, photophobia and visual loss, all of which were then set out in the Consent Form that the Claimant was repeatedly urged to read. The Defendant disputed that he failed to ask the Claimant if she read the Consent Form on the day of the surgery when she signed it. This was documented by the Claimant signing each page of the consent form with her initials besides a declaration, “I have read and understood this page”.
Experts: each party was allowed experts in four specialities: Ophthalmic Surgery, Psychiatry, Vocational Rehabilitation and Visual Rehabilitation. A peculiar feature of the Claimant’s choice of liability expert was that Mr Simon Walker, Consultant Ophthalmologist, had not himself performed LASIK surgery or ever counselled any patient for it. In contrast, the Defendant’s expert, Mr Robert Morris, Consultant Ophthalmologist, completed over 10,000 such procedure.
Judgment: the Judge made the following key findings:
- Paragraph 116(i): applying the first step in the Montgomery test of materiality, on the issue of what should have been known about the risk of the outcome that eventuated in the Claimant’s case, the Judge concluded that in 2016, the risk of a patient with her risk profile suffering severe permanent dry eyes which would be difficult to treat following LASIK was very small, the exact mathematical risk being unknown.
- Paragraphs 122-126: as part of his enquiry into what was material to the Claimant, the Judge found that she was not a high-risk patient. He accepted Mr Morris’ evidence that contact lens intolerance and issues with anxiety and depression are common in people seeking laser surgery and not factors that significantly increase risk. Furthermore, a more detailed history would not have enabled the Defendant to elicit information that would have necessitated a different explanation of the risk.
- Paragraphs 131-133: applying the test of materiality to his findings to about the Claimant, the Judge did not consider that a reasonable person in the Claimant’s position (so with her history of mental health issues) would be likely to have attached significance to a risk of this magnitude.
- Paragraphs 139-154: the Judge analysed the evidence about what was in fact said during the consent consultation and concluded that the Claimant’s case that nothing was said about any risk was inherently unlikely. He accepted the Defendant’s evidence about the discussion of the risks in accordance with his normal practice.
- Paragraph 155-160: the Judge concluded that the information in the Consent Form was provided to the Claimant several days before the operation and she was asked to read it. The Defendant could not be responsible for her failure to do so. He also concluded that the Defendant did ask the Claimant if she read the form and whether she had any questions about it.
- Paragraph 161-162: given there was no breach of duty, it was not necessary for the Judge to find if the Claimant would have chosen otherwise. However, he observed that, given how starkly her case was put (that she would not have accepted any risks), the finding that the risks were in fact discussed with her left no room for a case that she would have made a different decision.
- Paragraph 167: the Judge expressed sympathy for the Claimant: however, she was very unlucky to have suffered such a rare complication of surgery that is generally safe, producing good outcomes. He concluded, “No surgery is completely risk-free, however. Compensation only follows where blame is found, and I have not found that the Defendant was negligent”.
Conclusion: the judgment serves as a reminder that consent cases are difficult to establish where there is factual dispute about what was said and what the Claimant would have done. This is because the Claimants, who by then have suffered a severe complication, find themselves unable to distinguish between their state of mind following the adverse outcome and their state of mind before it, i.e. at the time when they were advised of what can only be described as a very small risk. In the words of Hutchinson J in Smith v Barking, Havering & Brentwood Health Authority [1989] Lexis Citation 1272 (cited by the Judge at paragraph 101):
“… there is a peculiar difficulty involved in this sort of case — not least for the plaintiff herself — in giving, after the adverse outcome of the operation is known, reliable answers as to what she would have decided before the operation had she been given proper advice as to the risks inherent in it. Accordingly, it would, in my judgment, be right in the ordinary case to give particular weight to the objective assessment. If everything points to the fact that a reasonable plaintiff, properly informed, would have assented to the operation, the assertion from the witness box, made after the adverse outcome is known, in a wholly artificial situation and in the knowledge that the outcome of the case depends upon that assertion being maintained, does not carry great weight unless there are extraneous or additional factors to substantiate it.”
A copy of the judgment can be found here.
