GAIL MARIE DUCE v WORCESTERSHIRE ACUTE HOSPITALS NHS TRUST [2018] EWCA Civ 1307

Hindsight v Foresight

I've often said that the consent-only elements of a claim are far more fragile than many people seem to consider. Take a look at, firstly, the speed and the brevity with which the trial judge found that the Claimant would not have changed her mind had she been warned as she says she should have been. There was an argument as to breach of duty and the test for causation too, but the brevity with which the Court of Appeal dispatched the consent argument just goes to show how fragile such arguments are. Hindsight is many things, not just wonderful.

The Claimant's grounds of appeal were, firstly, that the judge had failed to consider materiality when finding that there had been no breach of duty in not warning her of Chronic Post-Surgical Pain ("CPSP") after a Total Abdominal Hysterectomy ("TAH") and Bilateral Salpingo-oopherectomy ("BSO"). Secondly it was argued that the judge had failed to apply the causation test in Chester v Afshar and thirdly that the Claimant would have declined the surgery had she been so warned. The first two grounds do not trouble us here, I'm talking about hindsight.

The trial judge had found, in relation to the argument that the Claimant would have declined surgery had she been warned of the possibility of CPSP:

“53. The essence of the Claimant’s case is that if she had been warned that there was a risk of chronic pain or “nerve pain”, she would either have decided not to have the operation, had second thoughts/sought a second opinion, or at least put things off.

54. Given the history of her condition, and the attempts to steer her towards other treatments prior to this operation, I have no doubt that she would not have simply changed her mind. The only question is whether she might have paused to explore further what the detailed risks might be.

.....

59. I have to consider whether, on the balance of probabilities, a warning of nerve pain (or something similar) which might last for months would have caused the Claimant to have second thoughts and not proceed with the operation on the day. Given that she knew the operation would cause her some pain, that a warning of 4-6 weeks of pain would not have put her off, that she was warned that the operation might not relieve her abdominal pain, and that there were a number of other quite serious risks, I have concluded that it is more likely than notthat she would have proceeded with the operation on the day.”

Lord Justice Hamblen in the Court of Appeal didn't dally too long over the point:​

"72. This is a challenge to the finding of fact made by the judge that even if the appellant had been warned as it was contended she should have been, she would still have proceeded with the operation as she did.

73. This finding is set out in [59] of the judgment. Mr Donovan QC treats the factors identified in that paragraph as being the sole factors considered by the judge and contends that this shows that the judge failed to take into account a highly material consideration, namely that, since the predominant reason for seeking the operation was pain relief, a warning of the risk of further and different chronic pain would have caused her to reconsider.

74. The finding made by the judge in [59] was made against the background of all the evidence at trial. This includes relevant evidence referred to at various earlier parts of the judgment, such as [6](i)(v)(vii) and [9]-[13]. It also includes the compelling evidential points made at [56]-[58].

75. As the respondent submits, there was abundant evidence to support the judge’sfinding. The appellant had on several occasions been urged by medical practitioners (both GPs and gynaecological surgeons) to consider the less invasive alternatives to TAH, which she was aware was major surgery which carried significant risks; she nonetheless declined to pursue those less invasive options and elected instead to undergo TAH.

76. Further, paragraph [59] itself stresses the important point that the appellant waswilling to go ahead despite the fact that there were “a number of other quite serious risks”. As the judge found, “she wanted it all taken away” despite known serious risks.

77. There is in any event no substance in the suggestion that the judge omitted from consideration the appellant’s motivation(s) for proceeding to surgery. The judge considered in detail the applicant’s long history of symptoms from which she hoped to gain relief by undergoing surgery. That history was justifiably rightly considered to weigh in favour of her choosing to undergo surgery when she did, even if a different warning as to the risk of pain had been given.

78. For all these reasons, I reject Ground 3."

Now, I know in this case there appeared to have been advice to be more conservative and in many cases we don't see that, quite the opposite in fact. But it does reinforce the point I often make, that people consent all the time to operations where the direst of consequences are set out. Other poor outcomes were set out in this case but it had no effect.

No-one ever says it but the truth is that human nature is that we all consent all of the time to surgery with significant risks, either because we have no choice or because - and we all do it - we don't think it will happen to us. For the tens of thousands who don't trouble the lawyers, it didn't. But for a very few, it will. And it's very hard to show that, properly warned, you wouldn't have been like the tens of thousands of others and carried on regardless.

As Sir Arthur Conan Doyle said: “It is easy to be wise after the event.”

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