“T9/T10: there is disc extrusion causing severe narrowing of the central spinal canal. There is moulding of the theca. There are bilateral mild narrowing of the exiting neural foramina. There is no definite compromise of exiting neural foramina. T10/T11: there are prominent left paracentral/lateral disc/osteophyte bars effacing the left lateral recess and causing severe narrowing of the exiting neural foramen. The left exiting nerve root is contacting the disc/osteophyte bars. There is moulding of the theca. There is moderate to severe narrowing of the central spinal canal. … L3/L4: there is broad-based disc bulge associated with bilateral severe facet degenerative changes. There is severe narrowing of the central spinal canal. There is no definite compromise of exiting nerve roots. L4/L5: there are bilateral severe facet degenerative changes. There is mild narrowing of the left exiting foramen….”
“Mr Malik was desperate to have the surgery as soon as possible as I recall the intercostal pain was severe and causing him particular difficulty.”
“… his follow up MRI scan in May 2015 shows that although there is no longer pressure on the thoracic spinal cord at the site of his thoracic laminectomy and decompression for discs at T9, T10 and T11, there is still significant osteophyte and probably impingement on the exiting thoracic nerve roots. In addition he also has some lumbar canal stenosis at L3/L4. There has been progressive improvement in the power in his legs. He no longer has to walk using a walking stick, but he is in terrible pain from the left side with left-sided intercostalgia (01:03) and left-sided sciatic pain all the way down his leg and into the foot. Given these ongoing symptoms I think it would be worthwhile considering a further operation with a revision thoracic decompression and a lumbar decompression at L3/L4 to help to try and resolve these existing symptoms. Mr Malik is desperate to have this done as soon as possible and I will aim to admit him within the next three weeks…”
“(1) Mr Minhas failed to recognise that the pain was of neuropathic origin rather than radicular; (2) he failed to make any adequate attempt to identify or differentiate between those causes of pain and its location or origin; (3) he failed to discuss/recommend alternative treatments including pain management and/or appropriate injections for diagnosis/treatment; (4) in recommending surgery he failed to limit (or advise about the relative risks/benefits of limiting) such surgery to the lumbar spine; (5) he failed to counsel the claimant adequately or at all as to the risks of surgery and all alternatives; (6) he failed to ensure that the claimant had provided full and complete consent to surgery before listing him for a complex procedure; (7) the defendant failed to complete the surgical consent form adequately with all of the risks of the surgery; (8) the defendant failed to explain adequately the risks as set out on the form, so the claimant was unaware that the surgery could cause a spinal cord injury up to complete motor and sensory paralysis; (9) the defendant failed to prepare the consent forms legibly so it was clear to the claimant what the risks were; (10) the defendant failed to obtain adequate consent, such that any risks that were discussed was conducted in haste, without a period of ‘cooling off’, so that consent could not be freely given because he was by then committed to surgery.”
“It is then pleaded that the injury sustained as a result of the August 2015 surgery would not have occurred if he had not undergone multilevel surgery and he should have recovered at least to the level of function he had a year earlier after the previous surgery.”
“As the case developed at trial the principal matters for my determination essentially emerged as follows:- i) was the claimant complaining of terrible intercostal pain on13 July 2015 when he visited Mr Minhas’ clinic? ii) if he was, how long had he been suffering from it? iii) if he was, would a responsible body of competent and reasonable neurosurgeons have concluded that a significant proportion of that pain was radicular in nature and caused by compression to the left sided T10/T11 nerve root? iv) if so, would a responsible body of competent and reasonable neurosurgeons have offered revision surgery at that location in the light of its reasonably and competently assessed potential benefits and risks? v) even if they would, were there reasonable alternatives to surgery which, in the light of their respective benefits and risks, no responsible and reasonably competent neurosurgeon would have omitted to offer to the claimant? vi) was the offer of surgery (and, if established, any reasonable alternatives which should have been offered) adequately explained to the claimant in terms of its benefits and risks so as to obtain his informed consent to the surgery performed? vii) if a breach of duty has been proved on the balance of probabilities, applying the appropriate legal test, has the claimant also established that the negligence caused his injury and loss?”
“In large part (although not exclusively) it depends upon what was said when the claimant visited Mr Minhas’ outpatients’ clinic on13 July 2015 . It requires me to consider what Mr Malik was saying he was suffering from, diagnosis of the causes of those complaints, the reasonable treatment alternatives which were available for the diagnosed conditions, and the explanations given to Mr Malik of the respective benefits and risks of any such reasonable treatment alternatives so that he could make an informed choice before consenting to the treatment which Mr Minhas advised.”
“… Had he not had that pain, there would be no need to particularly go into the previously operated area at T10/11.”
“I think it was the only realistic option because, as we have discussed, we can’t go through nerve root injections as being something that is going to help with this. Pain management pathways and trying to go down the route of chronic high dose analgesia with opiates and things, again, didn’t seem a prospect. So, the two options, basically, in front of us were do we operate on his disc, and the lumbar spine obviously because he still getting the symptoms on his leg; or do I just turn him away, say we are not going to operate, give it time, see if it will settle.”
“It is argued that his adverse outcome is the result of not being informed of alternative treatments which he could, and would, have chosen in preference to surgery if he had been told properly of the risks of this surgery and the scale of its potential benefits. Thus, it is argued, his injuries from unsuccessful surgery have been legally caused by the defendant’s negligence.”
“86. However, that said, when considering all of the relevant evidence and giving it the weight it was due, the claimant was not able to persuade me on a balance of probabilitiesthat he was not complaining of very serious and debilitating intercostalgic pain when he visited Mr Minhas’ outpatient clinic on13 July 2015 . 87. It is not possible to say exactly how long the claimant had been suffering that terrible pain, but it was clearly acute and demanded some speedy intervention for its relief. Itcould not have been going on for more than a couple of months. 88. The expert evidence in the case led me very firmly to the conclusion that a responsible body of competent and reasonable neurosurgeons would have concluded that a significant proportion of Mr Malik’s intercostal pain was radicular in nature and caused by compression to the left sided T10 nerve root. His symptoms tallied entirely with the very clear MRI scan images of the nerve root being interfered with. Whilst some of thepain could have been neuropathic from spinal cord damage as Mr Minhas reasonably acknowledged, it was entirely reasonable for him to conclude that a significant proportion of the pain was likely to be radicular from compression of the T10 nerveroot because of its later onset and its reported path around and into the abdominal dermatome. 89. I am quite satisfied that a responsible body of competent and reasonable neurosurgeons would have offered Mr Malik revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015. In my view Mr Minhas reasonably and competently assessed the potential benefits and risks of undertaking that procedure. I accept Mr Minhas’ evidence that he gave appropriate advice to Mr Malik both of the types of risk that can result from such surgery but also of the general order of magnitude of that level of risk by using adequate comprehensible language. The process of ensuring the defendant had the consent of Mr Malik to the operative procedures was in my view quite properly confirmed by the completion of an adequate consent form signed by the claimant when he attended the hospital for his operation in August 2015. 90. As to whether Mr Malik should have been advised by Mr Minhas of alternatives, I find that analgesia had been tried at increasing levels. Mr Malik had indicated previously that he was not keen on trying to mask his pain with medication (he had expressed a desire to reduce a prescription); he did not like some of the side- effects he had experienced (constipation); and he was not keen on becoming dependent on some of the stronger drugs. It was reasonable for Mr Minhas to conclude that offering stronger analgesia would simply be avoiding confronting the identified acute problem and would fail to secure the benefits which Mr Malik was desperate to seek to achieve. 91. I am not persuaded on the balance of probabilities that it was negligent for Mr Minhas not to discuss with Mr Malik his logical opinion about the pointlessness of putting the claimant on a long waiting list for a complex thoracic nerve root injection. Thatprocedure had inherent risks of its own, would extend the period over which Mr Malik would suffer from terrible pain and, once administered, was most unlikely to provide anything but some possible short-term pain relief if anything. 92. Similarly I am not persuaded that it was negligent for Mr Minhas not to discuss a pain treatment strategy with Mr Malik as an alternative. I find that Mr Malik was desperate for Mr Minhas’ intervention. He was in terrible pain and wanted a curative solution which was not going to involve pharmacology or long-term pain management. 93. Whilst the leading case of Montgomery identifies that there is a duty to take reasonable care to ensure a patient is aware of any reasonable alternative treatments (because an adult is entitled to decide for themselves which, if any, of the available forms of treatment to undergo and thereby give their informed consent to an interference with their bodily integrity), in the circumstances of this case I consider that a responsible,competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the claimant had with Mr Minhas. 94. Even if I had been persuaded that the defendant had been negligent in any of the pleaded particulars, which on the evidence which I have heard I am not so persuaded, I wouldnot have found that any negligence was causative of the injuries which the claimant has suffered. As Mr Todd the claimant’s neurosurgical expert accepted, surgical intervention was a reasonable course to advise given the available evidence. Mr Malik had experience from the previous year of how uncertain the outcome of surgery can be. 95. The claimant has not satisfied me on a balance of probabilities that he would have declined the offer of having surgery in August 2015 if an injection (or any of the othermooted options) had been explained to him by Mr Minhas, with what were Mr Minhas’ perfectly respectable opinions as to their respective risks and chances of providing any desired benefit. Equally I am not satisfied on a balance of probabilities that Mr Malik would have sought another opinion or delayed making his decision. He wanted to have this surgery in order to relieve him of his terrible pain and he wanted it quickly. MrMinhas assessed him appropriately, advised him adequately and pursued the claimant’s wishes.”
“… [a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in this particular art.... a man is not negligent … merely because there is a body of opinion that would take a contrary view.”
“82 In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it isalso the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. 83 The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions. ……… 87 The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce [1999] PIQR P53, subject to the refinement made by the High Court of Australia in Rogers v Whitaker 175 CLR 479, which we have discussed at paras 77—73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
“the duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent.”
“it can be regarded as having been caused, in the legal sense, by the breach of that duty.”
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfied the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“It remains a basic principle of our system of civil procedure that the factual case the parties wish to assert at trial must ordinarily be set out in their statements of case (‘pleadings’). That is not a principle based on mere formalism. It is essential to the conduct of a fair trial that each side should know in advance what case the other is making, and thus what case it has to meet and prepare for. It is the function of the pleadings to provide that information.”
“…...the intercostalgia was much more recent. We are not entirely sure when it started, but it may have been present for a couple of months. … it was something of some weeks, a couple of months maybe, of intercostalgic pain. The natural history of radicular pain in general is that it improves. So a watch and wait policy for intercostalgia was an option because there was a chance of it getting better. But, as Mr Minhas has said, and others, and I don’t disagree with this, the pressure is on the surgeon to do something if the pain is severe. Severe disabling pain is a pressure not to watch and wait, but to do something. So, there would be those two tensions: severe pain, yes, but short lasting pain also. … the probability of pain improving – intercostalgia due to compression improving in this patient was less than radiculopathy generally… I think, on the balance of probabilities, it would not have resolved. I think the probability of it resolving was of a lowish order. I think it is very difficult to say. I would probably have said about 30 per cent chance of it resolving, 70 per cent not. But others will have their own view, and I would not necessarily disagree with slightly different figures.”
“… was it reasonable to offer surgery if intercostalgia was a new complaint, where the surgeon had no information or had not asked about how long that complaint had been present for? A. Clearly, if his Lordship finds that pain had been present for a very short time, you said a day or a week, then that would not be an indication for surgery, particularly not this revisional surgery. Radicular pain typically improves, from whatever cause. Because there is nerve root swelling … That swelling can settle down or the pathology can get better, but not -- as we said, probably not this pathology. So, with a short lasting period of radicular pain, the radicular pain could have improved spontaneously. We have said already that the chance of that happening, because it was a calcified disc osteophyte is less, but the chance of it happening is greater the shorter the period of radicular pain. So, if it is a day or two, or three or four, there was a very good chance of it settling. If it was three months, much less so. Q. Second question going on from that is: if a surgeon was going to offer surgery for radicular pain of recent onset, would it be appropriate for a surgeon to offer that surgery at that appointment without there being a further review?”
“I have just reviewed the notes I have made of the route you have been following in this part of your re-examination. I am of the view, I am afraid, that this is a new departure from your pleaded case. I think we need to move on to the next topic.”
“...when Mr Minhas gave evidence yesterday, he agreed that he had never asked the claimant about when the symptom of intercostalgia had come on...Do you consider that to be acceptable?”
“I think...it has to be relevant to the option of taking no action, and not going on to Mr Barnes’s concern that there should have been some further review appointment. But one of the options that we are having to consider is that whether the doctor says: well, live with it. See how we go. So I will allow you to ask the question.”
“In our scenario, we had a different situation. We had a pain which was – in my opinion it was there for a longer time, but it was documented in July. If the pain – I presume this pain was not there just on the first day when it was documented; I am presume [sic] this pain was before the claimant was seen by the surgeon. It was just documented on that day, but it would be unusual for this pain to develop on the day of being seen by a medical professional…. In our scenario, we had a patient with calcified severe compression on the nerve root and this patient already had treatment with strong analgesia for the previous year. Various options have been explored, in my opinion, and I don’t think there were many other alternatives available. So, considering that these imaging findings, which are concordant with the pain in that area, were there for some time, it was reasonable to offer surgery as an option that will give a very good chance of improvement of the symptoms of pain in that area…. The duration of pain is important… We should distinguish between the pain which has a very good chance of improvement and the pain which has not such a good chance of improvement with ‘wait and see’ or conservative management. So, if we accept that the pain -- if the court were to accept that the pain started on the day when the claimant was assessed by the surgeon, then I think it will be a rush to offer the surgery before giving some more time to have another alternative. But, in my opinion, this pain did not start on the day when the claimant was assessed by the surgeon. In my opinion, it was there before and, in my opinion, it was reasonable to offer the surgery at that time because the other treatment options probably had been exceeded [sic].”
“Mr Malik is desperate to have this done as soon as possible and I will aim to admit him within the next three weeks…”
“Mr Malik was desperate to have the surgery as soon as possible as I recall the intercostal pain was severe and causing him particular difficulty”
“the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”