H -v- RCH NHS Trust
Mr H was diagnosed with lower rectal cancer in 2007 and underwent a sigmoid loop colostomy on 16 October 2007 followed by chemotherapy and radical radiotherapy. Following this treatment an abdomino-perineal resection of Mr H’s rectum was performed and he was discharged in 18 February 2008 with a perineal wound. This wound however failed to heal post his surgery and Mr H had persistent discharge in 2008. On 19 March 2008 he was found to have a residual sinus in his perineum, which was narrow but quite deep. The wound remained infected and on 29 April 2008 he underwent a full opening and debridement of the wound. In September 2008 the perineal wound was recorded as being “less than 3cm in depth” and Mr H was said to be “improving steadily.” However, by March 2011 Mr H began to notice intermittent discharge from the perineal wound and he was required to undergo further procedures including curettage and closure of the perianal wound on 24 June 2011 and excision of the wound sinus on 28 June 2014. Post-surgery Mr H continued to experience leaking of fluid from the wound.
In March 2016 Mr H was seen by a Gastroenterology/colorectal surgeon who informed him or a plan to insert a flap as well as perform an excision of the damaged tissue. In July 2016 Mr H consented to this procedure and the inherent risks of surgery which included bleeding, infection, clots, wound problems such as non-healing or necrosis, and ongoing infections. However, following the surgery on 13 July 2016 Mr H awoke only to be informed by the surgeon that his bladder had been nicked during the course of the operation. An attempt was made to repair bladder but this proved unsuccessful and the Mr H’s bladder was eventually removed in May 2018 leaving him with the following complications:
• a permanent ileal conduit;
• the risk of benign strictures;
• the risk of developing a stricture at the junction of the ureter and ileum and needing major surgery
• the risk of developing urolithiasis (renal stones);
• the risk of symptomatic urinary tract infection, renal failure.
In August 2018 we brought a claim on behalf of Mr H against the Defendant Trust alleging failure on the part of the Trust to appropriately consent Mr H to the surgery on 13 July 2016. In its response the Trust admitted that the specific risk of bladder injury was not documented in the consent form but suggested that some surgeons would consider that this risk would be covered by the words “risk of flap necrosis, flap failure and non-healing sinus.” We chose not to respond to this point as we felt strongly that a judge would not be with the Defendant if they tried to pursue that line of argument.
The real hurdle for Mr H was that of causation and the need to convince the Judge that he would not have had the surgery had he been informed of the risk of bladder injury. The success or failure of the claim was therefore dependent upon how a Judge would perceive Mr H’s evidence.
The defendant Trust argued that it was for Mr H to prove that on the balance of probability he would not have had surgery at all and sought to rely on the case of Smith v Barking Health Authority 1994 which it believed provided support for its view that the Claimant’s factual evidence would carry no weight in the eyes of the court. The defendant relied specifically on the court decision where it was said:
“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, is a wholly artificial situation 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.”
To counter the Trust’s position it was argued that Mr H had been content to consent to surgery on 13 July 2016 because the risks which had been explained to him by the treating surgeon on the day were risks which did not expose him to the prospect of death, a decrease in his life expectancy or result in any other major or significant disability. Accordingly, Mr H’s case on causation was not simply based upon the assertions he intended to make in the witness box after the event but on medical records which provided extraneous or additional factors which supported the position he has adopted over the years. In support of this we were able to point to certain instances in Mr H’s medical records that showed that having received advice which accorded with the GMC’s ethical guidance Mr H had declined in other cases to undergo surgery on the basis that the potential risks exposed him to a decrease in his life expectancy and therefore exceeded his particular threshold of significant injury. Mr H settled his claim for £100,000.