Neurological causation and Chester v Afshar principles considered: Crossman v St George’s Healthcare NHS Trust [ 2016] EWHC 2878 (QB)

Rodney Crossman was 64 years old when he underwent a cervical laminectomy and foraminotomy for severe neck restriction and numbness in his left arm, at St George’s Hospital, Tooting. In admitted breach of duty, the Trust had placed Mr Crossman on the waiting list for this surgery immediately after his first meeting with a consultant in February 2011, at which it was agreed that his symptoms should first be treated using physiotherapy. The Trust further admitted that this error was not recognised or rectified, and that Mr Crossman was not informed that physiotherapy was still the recommended treatment, at the pre-operative assessment or when he was admitted to hospital the day before the surgery. As a result of the surgery, which was not negligently performed, he developed serious radicular nerve root injury. The risk of this occurring was agreed between the experts as of the order of 0.5-1%. It was agreed between the parties that, had Mr Crossman undergone the recommended physiotherapy, he would nevertheless have come to surgery around three months later than he in fact did.

Mr Crossman sued and won damages from the Trust on the basis of simple “but for” causation, despite the Trust alleging contributory negligence (in failing to question the hospital’s change of plan) and no medical causation (on the basis that the outcome, although statistically unlikely, was inevitable in any event for this patient). His claim was also brought in the alternative on the principles set out by the House of Lords in Chester v Afshar [2005] 1AC 134.

The interest of the judgment lies in the approach of the learned judge to assessing medical causation, including the allegation of contributory fault, and in his application to the facts of the principles in Chester’s case. Although it is a first instance judgment by HHJ Peter Hughes QC sitting as a Deputy, and the comments on Chester’s case are obiter and not fully discussed, the learned judge considered the intervening Court of Appeal cases - White v Paul Davidson & Taylor [2004 EWCA Civ 1511], Beary v Pall Mall Investments [2005 EWCA Civ 415], Meikeljohn v St George’s [2014 EWCA Civ 120] - all emphasising the limited reach of the Chester judgment; and two recent first instance judgments where the principles were applied and judgment given for the Claimant - Birch v UCH [2008] EWHC 2237 (QB) and Jones v Royal Devon & Exeter NHSFT (per Recorder David Blunt QC, unreported).

On contributory fault, the learned judge recalled and agreed with the view of Lords Kerr and Reed in Montgomery v Lanarkshire Health Board [2015 UKSC 11] that “an approach which requires the patient to question the doctor disregards the social and psychological realities of the relationship”, adding that whilst some patients might have done so, “it is unsurprising …that his reaction was not to question what was happening” and that his evidence should be considered in the context of the daunting setting of the witness box and being “closely questioned by a skilled and forceful advocate”.

On standard medical causation, HHJ Hughes QC preferred the evidence of Nick Todd, neurosurgery expert instructed by the claimant, to that of the Defendant’s expert Mr Byrne.   It was common ground between the experts that the cause of the injury was multi-factorial but that the most significant elements were residual stenosis and manipulation of a swollen nerve root. Mr Todd considered that these factors would vary in significance on different occasions (and indeed that there probably would have been no residual stenosis on another occasion); Mr Byrne opined that the outcome would have been identical whenever the operation was done. The learned judge observed that if he were to accept Mr Byrne’s view, then the Claimant could not prove causation on a conventional basis and would need to fall back on the Chester v Afshar approach; but found that the claimant’s operative risk, although probably somewhat higher than the very small statistical risk, was not such “as would be required to find that it is more likely than not that it would have materialised whenever he had the operation”. Having already found that the Claimant was not liable for failing to challenge the hospital’s treatment plan, it followed that judgment would be given for the claimant, for damages agreed at £92,500.

The Court then went on to consider the application of Chester v Afshar, given that “much of the discussion in closing submissions…turned on the application of the decision and in deference to the submissions and should this case go on appeal”. In essence, the learned judge was reluctant to extend the principle of the right to informed choice from failure to warn of risks (as in Chester) to cases such as this one (and the case of Jones v Royal Devon & Exeter NHSFT that had been cited to him) in which the risks had been properly explained but a late change of plan had not been. The learned judge described this as “a different and lesser category” in which “modification of the normal approach to causation would not be justified”.  No reasons are given for discarding this category altogether, although it is certainly arguable – and was argued - that so far as the claimant in each is concerned, the loss of autonomy, dignity and the right to make an informed choice is no less on these facts than on the facts of Chester, and the outcome equally disappointing and distressing. No doubt the Court might have given more detailed consideration to the Chester argument had he not already found for the Claimant on standard causation. It might otherwise have been difficult to avoid the proposition that where there was an admittedly negligent failure to follow the original surgical plan, a finding that the claimant was not responsible for challenging and averting that, and agreed evidence that the outcome was very much worse than expected, the claimant should have some right to recompense.

The learned judge refused the Defendant’s application for leave to appeal. The Defendant has indicated that permission will now be sought from the Court of Appeal. Mr Crossman was represented by Anna Beale of Cloisters.