Ecclestone v Medway NHS Foundation Trust [2013] EWHC 790 (QB)

Neutral Citation Number: [2013] EWHC 790Case No HQ11X00895
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 April 2013
Before
His Honour Judge Reddihough(sitting as a Judge of the High Court)
Between
Marc EcclestoneClaimantMedway NHS Foundation TrustDefendant
Mr Bradley Martin (instructed by Onyems & Partners) for ClaimantMr Gerard Boyle (instructed by Bevan Brittan) for DefendantHearing Hearing dates: 11-15 March 2013
JUDGMENT
[1]This is a claim for damages for personal injury, loss and damage in relation to an operation upon his left knee which the claimant underwent at the Sunderland Day Case Centre at the Medway Maritime Hospital in Kent on 19 March 2008. The defendant NHS Foundation Trust was responsible for the management and control of the hospital and there employed surgical, nursing and other staff, including a consultant orthopaedic surgeon, Mr John Fleetcroft, who performed the operation upon the claimant. It is alleged that the operation was performed negligently and that the follow up care provided by the hospital was negligent. The claimant asserts that by reason of the alleged negligence he suffered a haemarthrosis (bleeding into the joint space) in the knee which was not treated sufficiently soon after the operation, as a result of which he developed chronic pain and stiffness in the knee giving rise to serious disability.[2]The claimant was born on 12 June 1974 so that he is now aged 38 years and was 33 years at the time of the relevant operation. He had a history of knee problems prior to the operation. In December 1989, when the claimant was 15 years old, he was seen at the Sheppey Hospital because his right knee was giving way when playing football. He eventually underwent an arthroscopy of the right knee in December 1991 and the knee was found to be normal. So far as the left knee was concerned, in October 1998 he attended hospital complaining of pain in the knee and inability to flex or extend it, difficulty with walking and giving way of the knee. He underwent an examination by arthroscopy on 3 November 1998 when the knee was found to be essentially normal. On 9 January 2005, he attended a minor injury unit because of further problems with his left knee. He had felt pain when playing squash and there was restricted flexion and extension in the knee. He underwent arthroscopy of the knee on 17 January 2005 and again this showed the knee to be essentially normal with a full range of movement. Thereafter he underwent physiotherapy, but continued to experience very significant pain in the left knee. He remained off work from January until the end of September 2005.[3]By a letter dated 26 October 2007, the claimant’s general practitioner referred him to Medway Hospital, stating that the claimant had had problems with his left knee for some time and was now getting increasing problems with stiffness and cracking in the joint and the knee becoming painful and giving way on occasions when playing sport. He was referred for a MRI scan which was performed on 4 December 2007 and was reported to show no abnormality to account for the claimant’s symptoms. On 18 December 2007 he was reviewed by the consultant orthopaedic surgeon, Mr. Thakkar, who referred him for physiotherapy. On 19 February 2008 he was reviewed again by Mr. Thakkar’s registrar and was still complaining of antero-medial discomfort, clicking and giving way in the left knee. He said it was affecting his work and he had been unable to play squash for the past few months. The registrar then discussed with him treatment options including arthroscopy. He was advised that, because nothing had shown up on the MRI scan, there was a possibility that an arthroscopy may not help with his symptoms. However, the claimant was keen to proceed and he signed a consent form for arthroscopy. The frequently occurring risks of the procedure were stated to include bleeding.[4]Subsequently the claimant was contacted by the Medway Hospital and invited to undergo the arthroscopy on 19 March 2008 at the hospital’s Sunderland Day Case Centre. The procedure was to be carried out by Mr. Fleetcroft, who had been a consultant orthopaedic surgeon at the hospital since 1982 and had a sub-specialism in knee surgery. He had retired as a full time consultant in 2004 but from then until his full retirement in April 2008 he undertook part time operating sessions at Medway Hospital and also in the private sector. On 19 March 2008, Mr. Fleetcroft discussed the proposed procedure with the claimant, who signed a further consent form for an arthroscopy of his left knee but to include other procedures “as necessary”. The procedure was to be undertaken as a day case.[5]Mr. Fleetcroft’s operation note of the arthroscopy recorded that a tourniquet was applied for 47 minutes during the procedure. Incisions for the arthroscopy were made in the medial and lateral portals. The findings within the knee were said to be “lateral tracking of patella with fissuring of articular surface. Thick medial plica with Hoffa impingement.” The procedure was then described as “percutaneous lateral release. Excision medial plica.” The incisions were closed with steristrips and a drain was applied with chirocaine. It was directed that post operatively the drain should be removed that afternoon and wool and crepe was to be applied for 24 hours. The percutaneous lateral release referred to involved the division of the lateral patellar retinaculum and was intended to correct the lateral tracking of the patella. It will be necessary in due course to consider in further detail how the procedure was performed by Mr. Fleetcroft.[6]The claimant was discharged from the Day Case Centre in the evening of 19 March and it was intended that he should attend for a follow up appointment three weeks later in the Nurse Lead Clinic and for an outpatients appointment six weeks later. The claimant was given a contact telephone number at the Day Case Centre. In the days following his discharge, the claimant’s knee became very painful and swollen. On 25 March 2008 the claimant telephoned the Day Case Centre about his symptoms but was advised to consult his G.P. This was because the protocol at the Day Case Centre was that the patient should consult the Centre with any problems during the first 24 hours following discharge, but that thereafter the patient’s G.P. would have responsibility for him. The claimant had a telephone consultation with his G.P. on 25 March and was advised to continue to take analgesics but would have to be seen at the surgery if his knee became red or the pain did not settle. Because the pain continued, the claimant saw his G.P. on 31 March 2008. The G.P. treated him with antibiotics for a presumed infection in the knee joint. He returned to the G.P. on 9 April 2008 with the same symptoms and was given a further course of antibiotics.[7]The claimant then consulted Mr. Shetty, a consultant orthopaedic surgeon, at the Spire Alexandra Hospital on 11April 2008. The claimant’s knee was still painful and swollen and Mr. Shetty diagnosed a haemarthrosis in the left knee and unsuccessfully attempted to aspirate it. He therefore advised that the claimant should undergo an arthroscopic wash-out. Thereafter the claimant’s G.P. requested Mr. Shetty to carry out the wash-out of the joint under the NHS. Mr. Shetty performed that procedure at Kings College Hospital on 22 April 2008. He evacuated the haemarthrosis and cauterised bleeding vessels and in particular the lateral superior geniculate artery. Mr. Shetty also noted Grade 2 changes in the articular cartilage of the patella articular surface. Thereafter the claimant has continued to suffer swelling, pain and stiffness in his knee. He has undergone a variety of treatments but has developed a chronic ongoing condition in his knee.[8]It is from the foregoing largely undisputed background that the claimant’s claim arises. It is alleged on his behalf that, in the operation on 19 March 2008, Mr. Fleetcroft was negligent to use the percutaneous technique to perform the lateral retinacular release rather than the arthroscopic technique. It is said that in using the percutaneous technique Mr. Fleetcroft inadvertently divided the lateral superior geniculate artery and that gave rise to the subsequent haemarthrosis. Although haemarthrosis is a recognised complication of arthroscopy and lateral release, it is said that if Mr. Fleetcroft had used the arthroscopic technique rather than the percutaneous technique for the lateral release, he would have visualised the blood vessels and cauterised any bleeding vessels so that the haemarthrosis would not have occurred. Secondly, it is alleged that there was negligence on the part of the defendant in that the claimant’s post operative care after the first 24 hours was allocated to his G.P. rather than being retained by the surgical team at the hospital. It is said that if the claimant had had direct access to the surgical team during the post operative period, it would have been recognised on or soon after 25 March 2008 that he had suffered a haemarthrosis which would have been speedily dealt with and the claimant would not have developed the chronic pain and stiffness in his knee at all or to the same extent. If there was negligence as alleged on the part of the defendant, there is an issue as to whether it is proved that such negligence caused or materially contributed to the injury and disability of which the claimant complains and/or as to what extent. Finally, if the claimant is successful on the issues of negligence and causation, there are issues as to various heads of his compensation claim.[9]In relation to all of those issues, I have considered the following material:(i) witness statements and oral evidence from the claimant and Mr. Fleetcroft;(ii) medical reports, a joint statement and oral evidence from Mr. Fiddian and Professor Atkins, the orthopaedic experts instructed on behalf of the claimant and the defendant respectively;(iii) medical reports, a joint statement and oral evidence from Dr. Harrison and Dr. Sanders, the experts in pain management instructed on behalf of the claimant and the defendant respectively;(iv) reports and a joint statement from Dr. Lockhart and Dr. Latcham, the psychiatry experts instructed on behalf of the claimant and the defendant respectively;(v) reports, a joint statement and oral evidence from Miss Fraser and Miss Lawson, care experts on behalf of the claimant and the defendant respectively. In addition, I have been greatly assisted by extremely able written and oral submissions from counsel for each party.[10]In relation to the first issue as to whether Mr. Fleetcroft was negligent in using the percutaneous technique for the lateral release, the standard of care to be applied is that of the reasonable knee surgeon exercising and professing to have the necessary skill to undertake the surgery in question. The starting point in considering whether there has been negligence on the part of a medical practitioner is to determine whether he has acted in accordance with a responsible body of practitioners skilled in the particular medical field in question. This is the very well known approach set out by McNair, J. in Bolam -v- Friern Hospital Management Committee [1957] 1 W.L.R. 582 at 587:
“…He 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 that particular art. … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.”
[11]That approach was confirmed by the House of Lords in Maynard -v- West Midlands RHA [1984] 1 W.L.R. 634. At Page 638 Lord Scarman stated:
“A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion equally competent which supports the decision as reasonable in the circumstances. … Differences of opinion and practice exists and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.”
At Page 639 he stated:
“…I have to say that a judge’s preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.”
[12]The Bolam test was modified to some extent in Bolitho -v- City and Hackney Health Authority [1998] A.C. 232. The only speech, with which the remainder of their Lordships agreed, was that of Lord Browne-Wilkinson. At Page 241 he stated:
“…In my view the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In the Bolam case itself McNair, J. … stated that the defendant had to have acted in accordance with the practice accepted as proper by a “responsible body of medical men”
. Later … he referred to “a standard of practice recognised as proper by a competent reasonable body of opinion”. Again, in the passage which I have cited from Maynard’s case … Lord Scarman refers to a “respectable” body of professional opinion. The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.” At Page 242, he refers to the case of Hucks -v- Cole [1993] 4 Med.L.R. 393, where Sachs, L.J. stated:
“The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well known advance in medical knowledge, or whether they stem from a residual adherence to out of date ideas.”
At Page 243, Lord Browne-Wilkinson goes on to state:
“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence … In my judgment that is because in some cases it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”
[13]In relation to the question of whether the claimant has established that Mr. Fleetcroft was negligent in the manner in which he performed the lateral release, it is necessary to consider in some detail how he performed the operation, and the various techniques for the lateral release which were open to him. Essentially, it appeared from the expert orthopaedic evidence that there were three possible techniques for the lateral release. Firstly, there was the possibility of the open technique whereby the release is carried out through an incision on the lateral side of the patella enabling the surgeon to see the blood vessels and other structures. That technique does have cosmetic and potential infection disadvantages. The second possibility was the percutaneous technique where the release is effected by scissors used “blindly” through the skin on the lateral border of the patella. Finally, there is the arthroscopic intra-articular technique. By this technique, the procedure is viewed arthroscopically from within the joint and electro-cautery is used to divide the synovium and capsule and then to release the lateral retinaculum.[14]In his witness statement Mr. Fleetcroft describes in some detail how he performed the operation upon the claimant’s knee on 19 March 2008. He made portal incisions medially and laterally and the arthroscope was introduced through the lateral portal and he carried out a complete arthroscopic examination of the knee joint. He noted that there was lateral tracking of the patella and fissuring of the articular surface and a thick medial plica. He excised the plica with an arthroscopic shaver. He said there was no significant haemorrhage during that stage of the procedure. He then removed the arthroscopic instruments and in order to treat the lateral tracking he performed a percutaneous lateral release. This involved him in passing Mayo scissors into the lateral portal incision in order to divide the lateral retinaculum. He described precisely how he manoeuvred and used the scissors to achieve this. He made the point that this technique does not involve breaching the capsule or entering into the joint space and that any bleeding would normally be minimal. Having effected the lateral release he stated that he then checked the patellar tilt to ensure that he was satisfied with the extent of the release and the tracking of the patella. Although it was not clear from his witness statement, Mr. Fleetcroft confirmed in evidence that this checking was undertaken by putting the arthroscope back into the joint. He said that if there had been any bleeding into the joint at that stage, he would have seen it. Thereafter he closed the portal wounds with steristrips and inserted an intra-articular drain. The specific purpose of inserting the drain was to check for intra-articular haemarthrosis in the early post operative period. He said that there was no evidence before the discharge of the claimant of any bleed into the drain or at the points of the portal incisions.[15]In his oral evidence, Mr. Fleetcroft said that the percutaneous technique for lateral release was a well established procedure which had been done for decades and that he himself had undertaken it on many, many occasions. He stressed that it avoided the necessity of deliberately going through the capsule and synovium which is necessary with the arthroscopic technique. With the percutaneous technique, the surgeon is able to go straight to the proposed object of the procedure, namely the retinaculum. He described how with the percutaneous method there is skilled and careful use of the scissors close to the patella in order to avoid the numerous blood vessels.[16]Mr. Fleetcroft accepted that the percutaneous technique is blind in the sense that the structures and blood vessels are not visualised. However he said that there were safeguards to seek to identify any subsequent bleeding.[17]When he was cross-examined, Mr. Fleetcroft said that although he had been privileged to spearhead arthroscopic surgery in Kent, he had only ever undertaken lateral releases by the percutaneous method and had not used the arthroscopic technique for that. It was his opinion that the arthroscopic intra-articular technique increased the risk of haemorrhage because of the cutting of the synovium. Mr. Fleetcroft agreed that he would have been able and competent to undertake the lateral release from within the joint arthroscopically if he had chosen to do so. He accepted that with the percutaneous technique there was the well known risk of cutting the geniculate artery. However he said that normally there would subsequently be evidence of that having occurred from bleeding into the drain or from the portal excisions. Although the technique was performed with a tourniquet in place, once the tourniquet was removed then any bleeding should become evident.[18]In cross-examination, Mr. Fleetcroft conceded that in the present case the haemarthrosis must have resulted from him having inadvertently divided the geniculate artery. However he said that it was unusual that there was then no evidence of bleeding in the hours following the surgery. He said that could occur because the blood vessel went into spasm. He further conceded that, if he had divided the geniculate artery, for the haemarthrosis to have occurred he must also have divided the capsule and the synovium for the bleed to penetrate into the joint. He said the other possibility for the haemarthrosis was him having cut the medial plica. He said that if at any stage he had seen bleeding he would have cauterised the vessel.[19]Although he had not mentioned it in his witness statement, in cross-examination Mr. Fleetcroft volunteered the information that during 2008 he had undertaken thirteen lateral releases using the percutaneous technique and only one of those had given rise to bleeding. He also said that during that year he had carried out 243 arthroscopies.[20]I now turn to the expert orthopaedic evidence called on behalf of the parties. Mr. Fiddian on behalf of the claimant in his report dated 23 April 2012 stated that the percutaneous technique is a blind procedure with no visualisation of the division of the lateral retinaculum or identification of any of the adjacent blood vessels. Therefore he said it was impossible with this technique to make any attempt at cauterising the blood vessels to minimise the risk of bleeding and haemarthrosis. He expressed surprise that Mr. Fleetcroft chose to remove all the arthroscopic devices from the knee and carry out the lateral release as a percutaneous procedure with the retinaculum being divided by the scissors in a completely blind manner. He expressed the view that it seemed illogical that when Mr. Fleetcroft had the opportunity of using arthroscopic equipment to visualise the procedure and thereby identify possible damage to adjacent blood vessels, that he chose to do a blind procedure. He suggested that such a technique must be riskier in particular with regard to bleeding and haemarthrosis. He stated, “It should be considered an old fashioned technique which is not recommended in the literature and although some senior knee surgeons may still have been using this technique in 2008, it is certainly not common practice or even in accordance with accepted practice in 2008 and at the current time.”[21]Mr. Fiddian went on to say that, by the time Mr. Shetty operated on the claimant’s knee, he had a massive haemarthrosis caused by bleeding from the superior geniculate artery. He expressed the view that as Mr. Fleetcroft, by choosing the percutaneous technique, had put himself in a position where he could not possibly cauterise this bleeding blood vessel, the technique he used was below an acceptable standard.[22]Mr. Fiddian referred to papers, one by Verdonk and one by Fulkerson, neither of which mentioned the percutaneous technique. Mr. Fiddian therefore ventured to suggest that that amounted to a clear indication that that technique was no longer accepted.[23]Mr. Fiddian again expressed the view that it was completely illogical of Mr. Fleetcroft to dispense with the arthroscopic instruments and undertake a blind percutaneous division of the lateral retinaculum. He went on to say that the arthroscope could easily have been used to inspect the cutting of the lateral retinaculum and that diathermy instruments would have been available in theatre. In fact, of course, as appeared from Mr. Fleetcroft’s oral evidence, he did indeed re-insert the arthroscope and check inside the joint.[24]Professor Atkins, on behalf of the defendant, in his report dated 7July 2012, after a detailed review of the claimant’s history and Mr. Fleetcroft’s operation, referred to the 11th Edition of Campbell’s Operative Orthopaedics, published in 2008, in which he said the precise method of lateral release used by Mr. Fleetcroft was described in this standard textbook of orthopaedic surgery on Page 2890. Therefore, he said, the surgery which Mr. Fleetcroft had undertaken was a standard surgical technique described in an up to date textbook of orthopaedic surgery. Thus he said he could not see how the technique could be criticised. He said that Campbell clearly stated that the lateral release can be performed either under arthroscopic guidance or percutaneously: it is not mandatory to perform the procedure arthroscopically. In a letter dated 8 August 2012, Mr. Fiddian commented on Professor Atkins’s justification of the use of the percutaneous technique on the grounds that it is included in Campbell’s textbook. Mr. Fiddian stated that it is a very generic orthopaedic textbook updated every six or seven years which by its very nature, given the progress in various specialist areas of orthopaedics, is out of date by the time it is published. He said the percutaneous technique of lateral release is described in the 7th Edition of Campbell 1987 and the technique as described is unchanged in the 11th Edition (2008). However, Mr. Fiddian repeated his view that the technique was considered inappropriate by most specialist knee surgeons and he suggested that, as an orthopaedic surgeon who had been specialising in knee surgery for some twenty years, Mr. Fleetcroft had failed to keep up to date and was still using a technique described some twenty years previously which was known to carry a greater risk of haemarthrosis than either a fully open procedure or arthroscopic procedures. Thus his view was that the presence of the percutaneous technique in Campbell’s Orthopaedics in 2008 was not a justification for this technique to be used by a specialist knee surgeon.[25]Mr. Fiddian and Professor Atkins prepared a joint medical report dated 18 January 2013 in which they dealt with a number of questions and set out those matters upon which they agreed and disagreed. They agreed that Mr. Fleetcroft had a sub-specialism in knee surgery but also agreed that lateral release is a standard procedure which is carried out where indicated by surgeons who are not specific knee surgeons. They agreed that percutaneous lateral release is performed as a blind procedure with no visualisation of the division of the lateral retinaculum or identification of any of the adjacent blood vessels. They accepted that theoretically the percutaneous technique sought to divide the lateral retinaculum without breaching the capsule or entering the knee joint. They said this was the theoretical advantage over an arthroscopic technique which begins with dissection within the knee joint and therefore inevitably divided the capsule. However they said that in practical terms there was a significant risk of a capsular breach leading to a haemarthrosis if the superior lateral geniculate artery was divided. They further agreed that a haemarthrosis is a significant and known complication of the percutaneous technique but haemarthrosis is also a potential complication of any method of lateral release.[26]Both orthopaedic experts agreed that Mr. Fleetcroft had the opportunity of using the arthroscopic equipment to visualise the lateral release procedure and thereby identify possible damage to adjacent blood vessels. However they disagreed as to whether there was a logical justification for not doing this. Mr. Fiddian considered there was no reasonable logical justification for not doing this. On the other hand Professor Atkins took the view that the combination of the surgical intention to avoid damage to the capsule, the use of a drain and a compression bandage, as described in Campbell’s textbook, reduces the risk of haemarthrosis to the point where the logical justification for this particular method of lateral release is that the residual risk of haemarthrosis does not justify the extra surgical interference of an arthroscopic or open visualisation of the lateral release procedure and identification of potential bleeding vessels. They agreed that using the arthroscopic or open techniques, vessels which were visualised would be cauterised as far as possible, but there would nevertheless still be a risk of haemarthrosis. They agreed that the percutaneous technique precludes cauterisation of blood vessels and relies on a pressure dressing and a drain to prevent bleeding complications.[27]So far as Campbell’s Operative Orthopaedics textbook was concerned, the experts agreed that the percutaneous technique is there described and they agreed that this is a standard textbook of orthopaedic surgery which is widely respected although it is a generalist textbook, not a specific textbook of knee surgery. Professor Atkins reiterated his view that because the technique is described in that textbook the use of it cannot be criticised. Mr. Fiddian repeated his opinion that the percutaneous technique is historic and suggested that it had been retained in Campbell for historic reasons only. He then stated that it was his view “that this method of lateral release had been abandoned by specialist knee surgeons and that this technique would not appear in a textbook of knee surgery which was current in 2008.” He said the technique was no longer in accordance with standard and accepted practice in 2008. Significantly, both experts agreed that the haemarthrosis in the claimant’s case probably occurred because the lateral superior geniculate artery was divided at the time of the percutaneous lateral release. They agreed that, if the arthroscopic technique had been used, it would have reduced the risk of haemarthrosis but not abolished it. They also agreed that if a technique of lateral release had been employed which specifically sought to cauterise bleeding vessels, on a balance of probability the haemarthrosis would not have occurred.[28]Following Mr. Fiddian’s suggestion in the joint medical report that the percutaneous technique would not appear in a textbook of knee surgery which was current in 2008, and his views about Campbell, Professor Atkins expressed some further views in a letter dated 5February 2013. He said that he had the gravest possible reservations about Mr. Fiddian’s suggestion that Campbell contained information which was inaccurate or historic. He commented that Campbell’s Operative Orthopaedics is probably the most widely used orthopaedic textbook in the world. The chapter in question was authored by Dr. Barry Phillips, an American orthopaedic surgeon working at the Campbell Clinic, which is one of the world’s leading orthopaedic clinics. Professor Atkins said that the suggestion that Dr. Phillips or Campbell’s Operative Orthopaedics would endorse a surgery which is out of date seemed to him extraordinary. Professor Atkins then referred to a specialist knee surgery textbook, namely Insall & Scott’s Surgery of the Knee, 4th Edition, published in 2005. He said this is a standard textbook of knee surgery and that edition was current in 2008. On Page 860-861 the precise technique employed by Mr. Fleetcroft is described.[29]In his oral evidence, Mr. Fiddian described how in the late 1970’s and the 1980’s lateral release would have to be carried out by the open technique or the percutaneous technique because arthroscopic equipment at that time was not sufficiently developed for the lateral release to be performed arthroscopically. However, he said that with the development of diathermic equipment it became possible to carry out the lateral release arthroscopically. Therefore he said, since the mid 1990’s, he had himself been using the arthroscopic technique as it appeared to give a lower risk of haemarthrosis than the percutaneous technique. Again he expressed great surprise that an experienced knee surgeon like Mr. Fleetcroft was still using the percutaneous technique in 2008. He felt it was inappropriate to be dividing tissues blindly when there was a technique which allowed you to see what you were dividing and with a good chance of achieving haemostasis at the same time.[30]Mr. Fiddian admitted that he was surprised that the percutaneous technique was described in a current edition of the specialist knee surgery textbook, Insall & Scott, in 2008. However, he pointed out that immediately after describing the percutaneous technique, the authors stated “In recent years we have used electro surgery to perform … lateral release to avoid the complication of bleeding and haematoma from the superior lateral genicular artery.” Mr. Fiddian again expressed the view that it was illogical for Mr. Fleetcroft to use arthroscopic instruments at the beginning of the procedure and then to dispense with them to undertake the percutaneous lateral release completely blind. He dealt with the alleged advantages of the percutaneous technique, that it is unnecessary to cut the synovium or capsule and that a pressure bandage and drain was efficient to deal with a haemarthrosis. He agreed that although the arthroscopic technique involved cutting the synovium and capsule, the surgeon is able to visualise what he is doing. He pointed out that, with day case surgery, the drain is only in position for a limited period of time after the lateral release. In any event it was his view that with the percutaneous technique almost inevitably the geniculate artery and the capsule would be divided. With regard to Mr. Fleetcroft having re-introduced the arthroscope to check within the joint after the lateral release, Mr. Fiddian said that at that stage bleeding from the geniculate artery may not be apparent if it has not then penetrated the capsule.[31]When he was cross-examined, Mr. Fiddian maintained that as from the mid 1990’s when appropriate arthroscopic equipment was available it was illogical to use the percutaneous technique. Nevertheless he had to accept that some fifteen years later the technique was still being described in the textbooks from Campbell and Insall & Scott and that neither author suggested that the procedure was illogical. He accepted that with the arthroscopic technique a number of small blood vessels in the synovium were bound to be divided. However, he preferred engaging in the deliberate breach of the synovium and capsule in the hope that by the use of diathermy, haemarthrosis would not occur. He conceded that in the past some surgeons preferred the percutaneous technique so as not deliberately to have to damage the synovium and capsule. Again, though, he said that it was only in theory that the percutaneous technique does not involve any breach of the capsule or synovium or the geniculate artery. He accepted that any division of the geniculate artery is a recognised non negligent possibility of the technique. He thought that it was possible that some surgeons from his generation were still using the percutaneous technique in 2008 but he was not actually aware of anyone doing it. He accepted that if, with the percutaneous technique, the artery was divided it would only give rise to a haematoma if the capsule was not breached.[32]When Mr. Fiddian was questioned about the literature from Verdonk and Fulkerson to which he had referred in his report, he had to concede that it could not be concluded that, simply because they had not mentioned the percutaneous technique, it was outdated or illogical.[33]Mr. Fiddian accepted that Campbell is probably the most widely used orthopaedic textbook in the world and agreed with the eminence of Dr. Phillips who had written the chapter in question. However, he ventured to suggest that some United States textbooks continued to describe procedures even though they may no longer be in general use. He further accepted that Insall & Scott is one of the leading textbooks in the world on knee surgery. Again he suggested that the authors’ reference to now using electro surgery was an indication that the percutaneous technique was no longer acceptable. Mr. Fiddian confirmed that with any of the lateral release techniques a haemarthrosis can occur and that there can be a late onset haemarthrosis.[34]In his oral evidence Professor Atkins confirmed that he had been a consultant orthopaedic surgeon for 25 years undertaking general adult lower limb orthopaedic practice. Although he was not a specialist knee surgeon he undertook some 50 to 100 arthroscopies of the knee per year. In his medical report Professor Atkins had not referred to the technique he used for lateral release. However, in his oral evidence he said that in 2008 he was still using the percutaneous method and only swapped over to the arthroscopic technique using a coblation wand in about 2010. He said he had not been an early adopter of the cautery device because one is doing a not inconsiderable amount of extra damage to the knee and in particular the synovium with the arthroscopic technique. With the latter technique he said the geniculate artery as well as the synovium capsule is inevitably divided, whereas with the percutaneous technique such division may be avoided, although the surgeon always behaves as if he has divided the artery and so a pad and drain are applied. He described how the surgeon in using the percutaneous technique tries very, very hard to keep the tines of the scissors very narrow so that just the lateral structures are taken and the geniculate artery or other vessels are avoided. Professor Atkins was also not comfortable with the fact that the arthroscopic technique involved attacking structures which were incidental to the structure that was to be released. He said that with electro-cautery one is burning one’s way through from the inside of the knee joint to the outside and he always had concerns that he could burn his way through to the overlying skin. Although the percutaneous technique is described as blind, he said that the surgeon uses meticulous control with his hand and can feel the scissors and know what is under them. He disagreed that in 2008 it was illogical to use the percutaneous technique. He assumed that by the meticulous approach he used with the percutaneous technique he avoided the feared complication of haemarthrosis.[35]When he was cross-examined about his reliance on the descriptions of the percutaneous technique in the textbooks, and had not referred to his own practice in his medical report, his response was that he had offered the opinion of a leading textbook in the world rather than his own opinion as a generalist surgeon because the textbook opinion trumped his own. He said that in 2008 a responsible body of orthopaedic surgeons would carry out the percutaneous technique, it being in the textbook. He rejected the suggestion that a leading U.S. textbook would publish out of date information. Whilst he agreed that Campbell did not evaluate the various lateral release techniques, he said that it sets out the technique for the cadre of acceptable procedures which were currently done. He said “I cannot accept that the editor would allow an out of date procedure to be in that textbook unless there was a big warning that it was out of date.”[36]Professor Atkins said that orthopaedic surgery is a matter of choosing your potential complications and you have to balance your risks and benefits. He said that in his own practice, so far as he knew he had never had a haemarthrosis occur when he used the percutaneous technique. He said that the surgeon’s own experience and avoidance of haemarthrosis was a relevant factor for the surgeon when undertaking a risk/benefit analysis. He also noted that Mr. Fleetcroft’s re-introduction of the arthroscope following the lateral release provided a further opportunity to check for bleeding, even though a tourniquet would still be applied at that stage.[37]Professor Atkins made some observations about the art of surgery. He said that no two surgeons do surgery precisely the same way. He said, “I do it this way because in my hands it works.” Another surgeon will do it a different way because he considers it will avoid, for example, the risk of haemarthrosis. That, said Professor Atkins, “is the art of surgery”. In his view, the downside of using electro-cautery with the arthroscopic technique was that he cannot do an excellent job distally. He said it is also “surgically inelegant” because he was not attacking directly the structure he was aiming to attack and having to damage other structures to get to it. With the arthroscopic technique, he said that he did not think he was doing the surgery so elegantly and so there was a risk he would not do it properly and the patient has to come back for another operation. Thus he said the downside of electro surgery was that it may not be so precise and efficacious. He added that in 2008 his concern was that new arthroscopic devices were potentially dangerous and untried compared to the percutaneous method which he had used for many years without the risk of haemarthrosis occurring. Even with electro surgery he said you cannot see exactly what you are doing. With the percutaneous technique one is using one’s fingers as the thing with which you see.[38]In the light of all of that evidence on the first issue as to whether Mr. Fleetcroft was negligent to use the percutaneous technique, it was submitted on behalf of the claimant that percutaneous lateral release was no longer in accordance with standard and accepted knee surgery practice in 2008. The claimant relied upon the evidence of Mr. Fiddian and invited the court to prefer his views that the percutaneous technique was old fashioned and no longer accepted practice in 2008, to the views of Professor Atkins. It was argued that on the evidence it is obvious that the “blind” percutaneous technique must be riskier with regard to the occurrence of a haemarthrosis compared to the arthroscopic technique. It was said that Professor Atkins particularly in his medical report over-relied upon the descriptions of the percutaneous technique in the textbooks as indicating that it was an acceptable practice in 2008. I was referred to a passage in Reynolds -v- North Tyneside Health Authority [2002[ All E.R. (D) 523 at Paragraph 42, where Gross, J. stated:
“Granted that no textbook should be read unduly literally and without regard for relevant professional opinion …”
The court was asked to accept the view of Mr. Fiddian that, in effect, textbooks may lag behind orthopaedic practice. It was suggested on behalf of the claimant that there was no relevant evidence that there was a body of surgeons undertaking percutaneous lateral release in 2008. Although Mr. Fleetcroft was using the technique the only other evidence, coming for the first time in the witness box, was from Professor Atkins who said he was still using the technique at that time. On the other hand, Mr. Fiddian said he knew of no surgeon using that technique at that time. The claimant suggests that no weight should be attached to the evidence of Professor Atkins on that point. In any event, it was said that Professor Atkins changed techniques in 2010, which is an indication that the alleged additional risks of the percutaneous technique could no longer be justified. So far as the textbooks were concerned, it was argued that the fact that the technique is described in a textbook is not the equivalent of satisfying the Bolam test. The claimant further very much relied upon the fact that the authors of Insall & Scott said that they in recent years had used electro surgery to perform lateral release. It was said that that supports Mr. Fiddian’s view that the blind technique was no longer accepted practice in 2008.[39]The claimant went on to submit that, even if a body of surgeons were using the percutaneous technique in 2008, the use of it was not then reasonable and responsible. Reliance is placed upon Mr. Fiddian’s assertion that it was illogical to dispense with arthroscopic instruments and adopt the percutaneous technique. It was argued that there were not the asserted potential advantages of the percutaneous technique to justify adopting it in preference to the arthroscopic technique. It was asserted that the percutaneous technique very much involved the risk of dividing the geniculate artery and the capsule, thereby increasing the risk of haemarthrosis. Furthermore it was said that it is patently obvious that cauterisation is better at dealing with bleeding vessels than a drain and compression bandage, especially if the drain is removed after a few hours. It was suggested that Professor Atkins had conceded that there was no relevant downside to the electro surgical/arthroscopic technique. It was said that, even if it is accepted that Mr. Fleetcroft re-introduced the arthroscope after the lateral release, he did not do this to check for bleeding or to cauterise blood vessels. The claimant asserts that because the tourniquet was still applied, then any bleeding might not be seen in any event at that stage. The claimant emphasised that it was common ground between the orthopaedic experts that, had the arthroscopic technique been used, the haemarthrosis would probably not have occurred.[40]On behalf of the defendant, it was pointed out that Mr. Fleetcroft was a very experienced knee surgeon who had been in the vanguard of establishing the use of arthroscopic knee surgery in his region. It was submitted that the expert evidence of Professor Atkins should be preferred to that of Mr. Fiddian. It has to be borne in mind, it is said, that the lateral release surgery was not specialist knee surgery but was in the practice of the ordinarily competent general orthopaedic surgeon. The defendant submitted that the claimant could only succeed in establishing that Mr. Fleetcroft was negligent if it could be shown that he acted in a way in which no reasonably competent medical practitioners would have acted. It was stressed that there are at times differences of opinion and of approach in most areas of medical practice and the defendant referred to Professor Atkins’s evidence regarding the art of surgery. It was said that a responsible body of orthopaedic practitioners in this case was personified by Professor Atkins, who until 2010 was himself performing the percutaneous approach, and further supported by the authors of the two textbooks referred to. It was said that Mr. Fiddian had attempted to justify his opinion that the percutaneous approach was illogical and outdated by reference to some literature which in fact did not support the propositions he was advancing. It was submitted that Mr. Fiddian’s view about the textbooks being out of date was not credible. It was pointed out that, at the stage of the joint report, Mr. Fiddian had baldly stated that the percutaneous technique would not appear in an up to date textbook of knee surgery, when of course it transpired that it did. It is said that Professor Atkins should not be criticised for not setting out in his medical report the weighing of risk and benefit in relation to the percutaneous technique, because he was justified in simply pointing to the textbook references. In any event it was said Professor Atkins’s oral evidence included an excellent appraisal of the risks and benefits involved in the various techniques. Thus, it was submitted that this was not one of the rare cases where a court could find that the professional support for the percutaneous technique was not capable of withstanding logical analysis to entitle a judge to hold that the body of opinion in support of it is not reasonable or responsible.[41]I have considered the submissions, which I have summarised above, which were expanded in some detail in counsels’ written submissions. I have regard to all of the relevant evidence on this issue and to the proper legal approach as set out in the authorities to which I have already referred. In general terms, I found Professor Atkins the more impressive of the two orthopaedic experts. It is true that, in his initial medical report, he relied upon the inclusion of the percutaneous technique in the textbook as opposed to his personal opinion. However, when he did give evidence about his own practice and the balancing of benefits and risks, he gave what in my judgment was a fluent and clear account. In some respects, however, Mr. Fiddian was less careful and convincing in his approach to the issues in question and at times was rather cavalier. For example, in his original medical report he made reference to literature to support his view, when in fact closer analysis showed that the papers in question did not assist on the issues. He had made no reference in his initial medical report to the textbooks subsequently referred to by Professor Atkins. Indeed, at the time of the joint statement, he boldly stated, wrongly and without having checked, that the percutaneous technique would not appear in a textbook of knee surgery which was current in 2008. He did appear somewhat overly biased in favour of arthroscopy and arthroscopic techniques and very much relied on his own view that the percutaneous technique was out of date and that orthopaedic surgeons in 2008 would not use it.[42]I entirely accept the evidence of Mr. Fleetcroft as to how he performed the operation in question and that he had been successfully using the percutaneous technique for many years up to and including 2008 with few incidences of haemarthrosis. I equally entirely accept the evidence of Professor Atkins that he was using the percutaneous technique in 2008 and up to 2010 and that he had had no incidences of haemarthrosis when using that technique. In my judgment, from their evidence alone, it can be concluded that in 2008 there was a responsible body of orthopaedic surgeons who performed lateral releases by way of the percutaneous technique. Furthermore, the description of that technique in the textbooks Campbell, and Insall & Scott, provides further very powerful evidence, in my judgment, that in 2008 the percutaneous technique was still a recognised and acceptable technique. I reject Mr. Fiddian’s suggestion that both textbooks were out of date by 2008 and/or were only including the technique for historical reasons. The relevant passages in each of the textbooks describe the technique in some detail with no suggestion that it is illogical or out of date. In Campbell it says in terms:
“The procedure can be done as an arthroscopic intra-articular procedure or by a percutaneous method.”
In Insall & Scott, it is stated:
“During this phase, the arthroscope can be left in place or withdrawn to perform the procedure blindly, according to the preference of the surgeon.”
In my judgment, the fact that the authors then go on to say that in recent years they have used electro surgery to perform lateral release to avoid the complication of bleeding and haematoma cannot be read as meaning that they condemn the percutaneous technique as out of date and no longer to be used. I concur with Professor Atkins’s view that it would seem to be extraordinary if leading textbooks such as this would endorse a surgical technique which was out of date and not to be performed.[43]Therefore, having found that there was a body of orthopaedic surgeons who used the percutaneous technique in 2008, I have then to consider the Bolitho modification of the Bolam test as referred to earlier in this judgment. Thus I have to consider the submission on behalf of the claimant that the body of opinion in support of the percutaneous technique has to have a logical basis and that the questions of comparative risks and benefits must have been properly considered. I bear very much in mind the observations in Bolitho, that it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable and that it is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.[44]In my judgment, in the present case it has to be borne very much in mind that what is being considered is a surgical technique. I consider that the remarks made by Professor Atkins in his oral evidence about the art of surgery and surgical preferences are most apt. Both Mr. Fleetcroft and Professor Atkins were very experienced in carrying out knee surgery. As I have found, they have used the percutaneous technique for very many years and with considerable success in terms of avoiding the occurrence of a haemarthrosis. In the percutaneous technique they would attempt meticulously to use the scissors to seek to achieve the lateral release without dividing any blood vessels or the capsule or synovium. In my judgment, a responsible body of surgeons would be entitled to put their long experience and skill in using a particular technique in the balance of benefits and risks. In addition, in my judgment there were the potential benefits of the percutaneous technique as expounded by Mr. Fleetcroft and Professor Atkins in their evidence. In my judgment there was the potential benefit of achieving the lateral release without dividing any blood vessels or the capsule or synovium. I do not accept the suggestion by Mr. Fiddian that with the percutaneous technique it was inevitable that the geniculate artery would be divided although, as Professor Atkins said, the surgeon sensibly makes the assumption that he has divided it and that is why the pad and drain is utilised. Furthermore, I take the view that there was a downside to the arthroscopic technique in that the capsule and synovium had to be deliberately cut from within the knee joint in order to undertake the lateral release. I can well understand the hesitation of Mr. Fleetcroft and Professor Atkins in attacking structures which are wholly innocent and not the object of the surgery. Whilst with the arthroscopic method vessels and structures can be visualised, I accept, as Professor Atkins says, that one cannot always see bleeding vessels, and indeed that is confirmed by the fact that haemarthrosis can occur with the arthroscopic technique. As Mr. Fleetcroft said, cutting the synovium increases the risk of haemorrhage because it is very vascular. Another potential downside of the arthroscopic technique as suggested by Professor Atkins was that, with electro cautery, one is burning one’s way from the inside of the joint to the outside and with potential risks of burning through to the overlying skin. He also said that, with the electro cautery technique, he would be unable to get right down distally if he wanted to extend the release. Whilst it has to be accepted that the percutaneous is a blind technique, it is one that has to be carried out with skill and in any event there are steps which are taken to seek to identify and/or deal with a bleeding vessel or haemarthrosis. Thus, as I find occurred in the present case, following the lateral release Mr. Fleetcroft reinserted the arthroscope and checked inside the joint. I accept that, had he seen bleeding at that stage, he would have dealt with it by way of cauterisation. Secondly, there was the use of the pad and drain to identify and/or deal with a haemarthrosis. This I find was a standard procedure in the United Kingdom in day case surgery of this nature, and that it would not be necessary to have the drain in position for a longer period. I also accept the views of Professor Atkins that the arthroscopic technique is surgically inelegant and involves damaging other structures to achieve the release. There is therefore the risk, as he put it, that if the surgery cannot be done elegantly it is not done properly and so the patient has to come back for another operation. In other words, the downside of electro surgery by the arthroscopic technique is that it may not be so precise and efficacious. I also accept his approach as reasonable that, in 2008, there was a concern that the arthroscopic equipment was a potential danger compared to the method which he had used for many years without the risk of haemarthrosis.[45]Whilst I am prepared to accept the claimant’s argument that, with the arthroscopic technique, one can generally visualise the vessels and structures, that of itself cannot make it illogical to use the percutaneous method which does have some potential benefits and avoids the potential risks of the arthroscopic technique. There is no suggestion that the arthroscopic technique completely does away with the risk of haemarthrosis. It may be that in the present case if the arthroscopic technique had been used the haemarthrosis would not have occurred but, in my judgment, that in itself cannot mean that the use of the percutaneous technique was out of date and illogical.[46]It may be that, on balance, this court would prefer the body of opinion in favour of using the arthroscopic technique as opposed to the percutaneous technique in 2008. However, as was said in Maynard, that is no basis for a conclusion that it was negligent then to use the percutaneous technique.[47]In terms of the approach in Bolitho, I am satisfied that there was, by Professor Atkins and indeed Mr. Fleetcroft, and no doubt the authors of the textbooks in question, an appropriate weighing of the risks and benefits in relation to the percutaneous technique in 2008. In my judgment, on all of the evidence both the percutaneous technique and the arthroscopic technique for lateral release can be logically supported. Thus, I am unpersuaded by the claimant’s submission that this is one of those rare cases where I should reach the conclusion that the views genuinely held by Professor Atkins, supported by the textbooks, are unreasonable. In my judgment, it would be a very bold and inappropriate step for a court to take to find in effect that the authors of two leading world textbooks on orthopaedic surgery had described a surgical technique which could not be logically supported.[48]It must follow from the foregoing findings that the claimant has failed to establish that Mr. Fleetcroft was negligent in using the percutaneous technique and not the arthroscopic technique and/or in failing to cauterise blood vessels during the surgical procedure.[49]Having rejected the claimant’s case that the operation on his knee was performed negligently by Mr. Fleetcroft, I next turn to the second allegation that there was negligence on the part of the defendant in relation to the claimant’s post operative care. This is a relatively straightforward issue. The claimant claims that he should have had access to the surgical team at the hospital during the post operative period, not limited to the first 24 hours.[50]The claimant said in his witness statement that after the operation he was advised to contact the Day Case Centre if he experienced any problems and was not told that after 24 hours he should refer any problems to his G.P. He reiterated that that was the case in his oral evidence. He said that that was the reason why he had in fact contacted the Day Case Centre on 25 March 2008. When he did that, of course, he was advised to consult his G.P.[51]According to Mr. Fleetcroft’s witness statement, the standard instructions given to patients on discharge from the Day Case Centre were to contact the Centre if there were any problems in the first 24 hours post surgery but that thereafter they were advised to contact their G.P. He confirmed that in his oral evidence and said that if, after the 24 hour period, a patient did telephone the Day Case Centre, the advice would be that the patient should go to his G.P. Thus, it may not actually matter what the claimant was told after the operation, because the firm practice at the Centre was that, after the 24 hour period, a patient who contacted the Centre would be referred to his G.P.[52]In relation to this issue, in his medical report, Mr. Fiddian said that the protocol for post discharge management at the Day Case Centre, whereby after 24 hours the patient should consult his G.P., might be adequate for patients having straightforward simple arthroscopic knee surgery, but it was completely inadequate for a patient who had had a procedure which carried a significant risk of bleeding and haemarthrosis, i.e. procedures such as lateral retinacular release. He said if there were serious complications such as haemarthrosis or infection it was not acceptable for the patient to have to go to his G.P. who may have no experience of knee surgery and its complications. He said that if the claimant had been seen by one of the surgical team and had had appropriate treatment within 7-10 days, it is very likely that the complications would not have ensued. He suggested that the surgical team who carried out the operation had a duty of care to the patient until his recovery had taken place and that the hospital protocol did not allow the surgical team to deliver that duty of care.[53]Professor Atkins in his medical report expressed the view that the post operative care was within the range of that which is acceptable. He said he assumed that it was an agreed policy with the Day Case Centre that patients should be referred to their General Practitioner and he concluded that that was a reasonable clinical decision. He pointed out that it was always open to the G.P. to refer the patient back to the hospital earlier than the first outpatient appointment following the operation.[54]In the joint report from Mr. Fiddian and Professor Atkins, they agreed that the discharge arrangements at the Day Case Centre are standard within the NHS. They agreed the optimal practice would be that the patient should have immediate and direct access to the treating surgical team. Mr. Fiddian added that he considered the arrangements were not adequate for patients having more aggressive surgery such as lateral release. Professor Atkins said that the arrangements described are standard in the NHS and it was open to the G.P. to refer the patient back as an emergency to the treating clinical team. They were agreed that, if the surgical team had seen the claimant on or about 25 March 2008, on a balance of probability he would have been taken to the operating theatre as an emergency and the haemarthrosis evacuated.[55]Mr. Fiddian reiterated his views in his oral evidence and said that whilst the protocol at the Day Case Centre was standard for such centres, it was inadequate because it fails the patient who suffers complications. He said a G.P. is not best placed to take appropriate action because they may be unfamiliar with the operation in question. He conceded that protocols such as this are usually produced after consultation among the health care practitioners including anaesthetists, surgeons and members of the nursing team. He conceded that if something was outside a G.P.’s experience they would inevitably refer the patient back to the surgical team or to Accident & Emergency.[56]In his oral evidence, Professor Atkins said that it was “pretty well universal in the NHS” for a patient to be referred to the primary carer, namely the G.P., once 24 hours had elapsed after day surgery.[57]It was submitted on behalf of the claimant that, whilst the experts were agreed that such discharge arrangements are standard within the NHS, the claimant’s case was fact specific. Because there was a significant risk of haemarthrosis which might occur after the drain had been removed he should have had access to the surgical team beyond the first 24 hours. The claimant also relied on a leaflet prepared by Mr. Fleetcroft for Day Case Centre patients, which gave the contact telephone number of the Centre and did not say that such contact was restricted to the first 24 hours.[58]On behalf of the defendant, it was submitted that it would be difficult to see how the claimant can sustain any cause of action in negligence with regard to post operative arrangements which were standard within the NHS, unless the court was to be invited to conclude that such standard arrangements for this kind of day surgery in the NHS were negligent. It was said that the standards suggested by Mr. Fiddian were much higher than that reasonably expected within the NHS.[59]I find that the follow up arrangements at the Day Case Centre were standard within the NHS. I further find that the arrangements would routinely include patients who underwent a lateral release which had a risk of haemarthrosis. It may be that optimal care would be that a patient had unlimited access to the surgical team. However, that is not the legal test and what has to be in place are reasonable arrangements recognised and accepted by a responsible body of medical practitioners. I reject the view of Mr. Fiddian and the submission on behalf of the claimant that the claimant should have been treated as falling outside the standard arrangements because of the nature of his operation. In any event, it would have been open to his G.P. immediately to refer him back to the surgical team or to Accident & Emergency. The claimant could even have taken it upon himself to attend at the Day Case Centre or at Accident & Emergency. It follows that I find that the defendant was not negligent in the provision of the post surgery care of the claimant.[60]As I have rejected each basis on which it is alleged by the claimant that the defendant was negligent, his claim must fail and there will be judgment for the defendant.[61]Strictly speaking, as the claimant’s claim has failed, the issues of causation and in relation to quantum do not arise. Nevertheless, I will indicate what my findings would have been on those issues had the claimant succeeded in establishing negligence against the defendant.[62]The issue which would have arisen as to causation was essentially whether the haemarthrosis and/or the delay in dealing with it was proved to have caused or materially contributed to the injury and disability suffered thereafter by the claimant and/or as to what extent. I do not propose to set out in great detail the history of the claimant’s symptoms and treatment following the removal of the haemarthrosis by Mr. Shetty on 22 April 2008, and his present condition and disability. These are all dealt with comprehensively in the condition and prognosis reports from Mr. Fiddian and Professor Atkins and the reports from the pain consultants, Dr. Harrison and Dr. Sanders, as well as in the claimant’s witness statements and oral evidence. The position can be summarised as follows. Following the removal of the haemarthrosis he continued to have pain and a reduced range of movement in his knee. He underwent a variety of treatments including three manipulations under anaesthetic. He was initially off work for about seven months following the complication of the haemarthrosis. He was unable to return to his previous job as a yard marshal at a Co-op distribution centre, which involved some heavy goods vehicle driving, but his employers were able to offer him an office based job as team leader. He has continued to suffer very significant pain in the knee and has had further absences from work. There appears to be permanent stiffness in the knee and he has to avoid putting weight on his left leg when walking. He has had to use crutches and by October 2011 he began to use a wheelchair which has aided his mobility. He has difficulty with sleeping and many of his previous activities are no longer open to him. As described in the reports from the consultant psychiatrists, Dr. Lockhart and Dr. Latcham, as a result of his situation the claimant has developed symptoms of depressive disorder and anxiety from about the spring of 2011, becoming significantly worse in the autumn of that year when he began to use a wheelchair. The prognosis for his overall condition is not good. Overall he was considered by the medical experts to be a genuine historian and I indeed also formed that view when he gave his oral evidence.[63]In relation to the issue of causation, Mr. Fiddian stated in his report dated 23 April 2012 that, if the haemarthrosis had been treated promptly, the claimant’s knee would almost certainly not have stiffened up and he would have been at a much reduced risk of developing a pain syndrome. He said that there is some debate as to the extent of damage caused by the mere presence of blood within a joint and that, in his view, the main problem is that haemarthrosis is extremely painful and it is that pain which prevents the patient from moving the knee, giving the opportunity for adhesions to occur causing progressive stiffness. He added that there is some evidence that longstanding blood in a joint as in patients with haemophilia can cause damage to the articular surface but he did not think that this damage occurs within a period of three weeks. It was his opinion that even if the lateral release procedure had been unsuccessful in relieving the claimant’s original symptoms, if the haemarthrosis had been treated promptly he would at least have made an otherwise uneventful recovery from the operation.[64]Professor Atkins in his report dated 7 July 2012 also referred to prolonged exposure to blood in a joint in the case of haemophiliacs. However, he said that in the present case the blood had only been in contact with the knee joint for 4½ weeks and it was unlikely that major damage to the articular cartilage was sustained in so short a period. He said that the claimant’s left knee had proceeded to severe articular cartilage damage over a period of a further two years. He accepted that the haemarthrosis and its almost five week chronicity will have made some contribution to that cartilage breakdown. However because the knee was already painful at the time of the operation in March 2008, it was already undergoing articular cartilage breakdown. It was therefore the opinion of Professor Atkins that the haemarthrosis and its duration for five weeks had accelerated the articular cartilage degeneration and a chronic pain syndrome which would have occurred anyway by one year after the operation. He agreed with the view of Dr. Harrison, the claimant’s pain expert, that the claimant did not have a complex regional pain syndrome but a chronic pain syndrome which he said existed prior to Mr. Fleetcroft’s operation and had been worsened by the fact of that operation. He thought that the haemarthrosis was a minor factor in the development and worsening of chronic pain and articular cartilage damage in the claimant’s left knee. He thought because of the claimant’s previous history and response to previous arthroscopies that, even if the haemarthrosis had not occurred, the surgery on 19 March 2008 would have caused of itself the chronic pain syndrome.[65]Dr. Harrison in his report dated 14 May 2011 argued that the presence of blood within the knee joint is believed to give rise to inflammatory changes within the synovial tissue and degenerative changes in cartilage. Therefore he said it is possible that the presence of blood within the joint has given rise to an inflammatory process in its own right. He said that the claimant had ongoing pain after the haemarthrosis was removed and the presence of continuing pain over a period of weeks and months is the start of the development of chronicity of pain. It was therefore his opinion that, on the balance of probabilities, the claimant had developed chronic pain in his left knee which he would not have developed had he not had the haemarthrosis. Thus he concluded that whilst some of the criteria for a complex regional pain syndrome were satisfied, this was not such a case and it was a chronic pain syndrome. Dr. Harrison repeated those views in his second medical report dated 9 June 2012.[66]Dr. Sanders, the defendant’s pain expert, in his medical report refers to the claimant’s previous history of pain in the knee and the previous arthroscopies and particularly noted that after the 2005 arthroscopy the claimant continued to suffer pain for at least eight months and was off work for that period. Dr. Sanders therefore concluded that the claimant was likely to experience further episodes of pain in the left knee in the future. Dr. Sanders concluded that the claimant fulfilled the criteria for complex regional pain syndrome which is an exaggerated response to an injury manifest by intense prolonged pain. He said CRPS can be triggered by any noxious stimulus which can be very trivial. He said that arthroscopic surgical procedures can trigger CRPS in their own right. He said he was not aware of any evidence that demonstrates an increased incident of CRPS in circumstances of intra-articular haematomas. He said that if it was accepted that the claimant had developed CRPS rather than a specific pain condition related to the presence of blood within the knee, it was in his opinion impossible to assess whether the CRPS developed in response to the haemarthrosis or as a recognised complication of arthroscopy. He noted that at the time that the haemarthrosis was evacuated no significant improvement in pain or functional level occurred, suggesting that there was another explanation for the pain.[67]Mr. Fiddian and Professor Atkins in their joint report agreed that the claimant had a very significant prior history of problems with the left knee. For this reason they agreed the best possible outcome of Mr. Fleetcroft’s operation was a slow and protracted recovery. However Mr. Fiddian was then of the opinion that thereafter the claimant would have regained full function of his left knee or at least ended up no worse than his pre operative status. On the other hand Professor Atkins was more influenced by the past history of chronic pain within the left knee and the eventual poor outcome from the knee which had been exposed to a haemarthrosis for only five weeks. He was therefore of the opinion that pre existing damage to the knee and the claimant’s susceptibility to pain within the knee implied that, even if the haemarthrosis had not occurred, the claimant was destined to chronic pain disability within his knee. He accepted that the haemarthrosis and its presence for five weeks made some contribution to cartilage breakdown and that this accelerated symptoms which would have occurred anyway within the left knee by a period of one year only. Mr. Fiddian maintained that as there was no evidence of any generalised articular cartilage pathology at the operation in March 2008, the dramatic onset of severe damage following the haemarthrosis could only be attributed to the complications of haemarthrosis and stiffness which ensued and there would be no reason to anticipate such major damage for at least five years had the operation been successful.[68]In the joint report from Dr. Harrison and Dr. Sanders, they agreed that the claimant had previous episodes of knee pain going back over several years and had had knee pain for most of 2005 which prevented him from working. They agreed that in October 2007 he presented with stiffness and cracking in the left knee joint with antero-medial discomfort. It was Dr. Sanders’s view that that history evidenced a chronic pain within the left knee. Dr. Harrison expressed the view, again, that on the balance of probabilities the claimant would not have developed chronic disabling pain in his left knee but for the haemarthrosis. On the other hand, Dr. Sanders’s view was that because of the evidence of significant knee pain prior to the haemarthrosis it was not possible to say whether the claimant would have developed chronic disabling pain had the haemarthrosis not have occurred. Dr. Harrison stated that in his view the degenerative changes in the cartilage were the result of the haemarthrosis, whereas Dr. Sanders said that the extent to which this process could occur in the present case is unclear and unproven. Dr. Harrison maintained his opinion that the claimant had a chronic pain syndrome, whereas Dr. Sanders maintained that it was CRPS and that the claimant’s continuing pain was not attributable to the haemarthrosis, although he accepted that it contributed to pain and immobility in the immediate post operative period.[69]In his oral evidence Dr. Fiddian said that a haemarthrosis is likely to cause the patient to lose some movement leading to stiffness in the knee. He also suggested that blood in the joint can cause damage to the health of the arterial surface. He was unable to quote any evidence in relation to that but said it was a well held view. He suggested that the blood in the joint could give rise to damage to the articular surface leaving it somewhat softened and unhealthy and more prone to damage. Although he did not think that such damage occurred within three weeks, he said the more the haemarthrosis continues the more likely there is to be damage. He agreed that the claimant’s absence from work for eight months after the 2005 arthroscopy was very unusual, and agreed that that could be consistent with the patient developing a chronic pain syndrome. However, he said that he thought the haemarthrosis made it much more likely that a chronic pain syndrome would develop. He accepted that there was a possibility that it could have occurred in any event. He suggested that as there was no evidence of arthritis in the knee in March 2008, why would it otherwise have developed within a year? He did accept that by at least five years after the operation the claimant might have developed osteoarthritis in that part of the knee where the fissuring was seen in 2008. He suggested that although the claimant might have developed symptoms of arthritis after five years, if his pain syndrome had receded as it had in the past there was no reason for him to be in the same state as he is now.[70]In his oral evidence Professor Atkins very much emphasised the question of why should the haemarthrosis cause all of the claimant’s problems. He said that haemarthrosis is a benign condition in the overwhelming majority of cases and a knee joint suffers no permanent harm as a result of haemarthrosis. If the haemarthrosis caused the claimant’s problems then it must have been because of the pain syndrome he already had and degenerative changes in his knee. He said that by reason of the fissuring the claimant’s knee joint was significantly abnormal at the time of Mr. Fleetcroft’s operation. He said it is unusual to see such changes in a man of the claimant’s age. He said that if 4½ weeks of haemarthrosis gave rise to damage to the articular cartilage, this was a knee which would have suffered serious deterioration anyway. Again, Professor Atkins accepted that the haemarthrosis contributed to the claimant’s condition but that it only brought about an acceleration of what would have occurred anyway after one year. He said very firmly that he had no doubt that this was a case of acceleration although he could not be precise about the one year period and accepted it could be somewhat longer, say eighteen months.[71]Dr. Harrison in his oral evidence maintained the opinions expressed in his medical reports. He accepted that CRPS is a potential complication of arthroscopy and lateral release. However he considered it was not CRPS in the present case because of his view that the haemarthrosis was an explanation for the continuing pain and disability.[72]Dr. Sanders in his oral evidence equally stood by the views expressed in his medical report and the joint report. He did not consider that the haemarthrosis could be separated out as a contributory factor to the CRPS which he considered was the diagnosis. He said it was one of a number of possible triggers and he could not discount it. However, in re-examination he said of the possible triggers for CRPS, in his opinion, on a balance of probabilities, the arthroscopy and lateral release of themselves were likely to have caused it. The claimant argued that the defendant should not be permitted to rely upon this answer because no such positive case had been pleaded. I reject such submission because in my judgment such a view had been predicated in Dr. Sanders’s medical report and in the joint report.[73]It was submitted on behalf of the claimant that the view of Mr. Fiddian should be accepted, that the onset of severe damage following the haemarthrosis could only be attributed to the complications of the haemarthrosis and stiffness which ensued. When Mr. Fiddian said there would be no reason to anticipate such major damage for at least five years had the operation been successful, he was not conceding that it was an acceleration case or that the claimant would have suffered the same pain and disability at that stage. It was submitted that the court should accept the substance of Mr. Fiddian’s evidence that the claimant would have avoided his current disability but for the haemarthrosis and the delay in dealing with it. It was said that there was no logical basis for Professor Atkins’s view that other causes were sufficient to have brought about the claimant’s disability and would have done so in any event within a year or so. The court was also asked to rely upon Dr. Harrison’s view that the haemarthrosis was the best explanation for the development of the claimant’s pain condition whether or not it is CRPS or a chronic pain syndrome. It was suggested that Dr. Sanders was wrong to discount any ongoing impact from the haemarthrosis beyond its effect in the immediate post operative period.[74]It was submitted on behalf of the defendant that the court should accept the combined effect of the evidence of Professor Atkins and Dr. Sanders that the haemarthrosis was likely to have caused an acutely painful knee for a short period of time and thereafter merely accelerated the degeneration of the claimant’s knee by one year. It was argued that Professor Atkins’s explanation of why it was an acceleration case was very clear and that in particular haemarthrosis simply does not cause the kind of long term pain and disability seen in the claimant. The defendant relied very much upon the claimant’s previous history regarding his knee and the protracted period of recovery from the arthroscopy in 2005. It was also pointed out that Mr. Fiddian had conceded that, even without the haemarthrosis, he would have expected a long and protracted recovery from Mr. Fleetcroft’s operation. It was suggested that at one stage Mr. Fiddian was conceding that the claimant may well have ended up with the same pain and disability after a five year period in the absence of the haemarthrosis.[75]In my judgment, it is not necessary for me to decide whether the claimant’s ongoing pain and disability involves a complex regional pain syndrome or a chronic pain syndrome. Dr. Harrison opted for the latter, because it was more consistent with his opinion that the haemarthrosis gave rise to inflammatory changes within the claimant’s knee joint and was the cause of his continuing pain and disability. In my judgment, as argued by Professor Atkins and Dr. Sanders, great significance should be attached to the previous history of the claimant’s left knee prior to Mr. Fleetcroft’s operation. I attach particular significance to the eight month period during which he continued to suffer pain and was off work following the arthroscopy in early 2005. This is particularly so in light of the fact that a normal recovery period from a straightforward arthroscopy is in the order of two weeks. Furthermore, when he saw his G.P. in October 2007, he was complaining of increasing problems in the knee with stiffness and cracking in the joint and pain and giving way of the knee. I found the reasoning and opinions of Professor Atkins and Dr. Sanders much more compelling than those of the claimant’s experts. In my judgment, there was every indication that prior to Mr. Fleetcroft’s operation the claimant was developing a pain syndrome. I accept the opinion of Professor Atkins that, by 2008, the claimant had an abnormal knee with abnormal arterial surfaces and that a simple haemarthrosis, although undealt with for about five weeks, would not have given rise of itself to the pain and disability subsequently suffered by the claimant. In my judgment, it could well have been the case that with this claimant’s knee the arthroscopy and lateral release alone could have brought about his pain syndrome. Thus I accept the opinion of Professor Atkins that although the haemarthrosis in the short term contributed to the claimant’s condition, it only brought about an acceleration of what would have occurred in the knee anyway. I do not consider that Dr. Harrison provided any hard evidence for his opinion that the haemarthrosis gave rise to inflammatory changes within the synovial tissue and to degenerative changes in the cartilage. In my judgment, Mr. Fiddian went some way towards accepting that at least by five years after 2008 the claimant would have had similar problems to those he now has. Although Professor Atkins suggested that the acceleration period was one year, he was not being absolute about this and conceded that it may have been somewhat longer than that. Bearing in mind all of the medical evidence and the history of the claimant’s knee, I would have come to the conclusion, had negligence been established, that the haemarthrosis and delay in it being dealt with brought about an acceleration in the claimant’s pain and disability, which would in any event have occurred, by a period of two years.[76]It follows that, had the claimant succeeded in establishing negligence, his compensation would have been limited to a period of two years, by reason of what my finding would have been on causation. The parties had agreed that for a period of acceleration of one year, general damages for pain and suffering and disability would have been £5,000, and for five years acceleration £10,000. Thus, for a two year acceleration period an appropriate figure would be in the region of £6,500. The parties would have been able to agree the proportionate figures for the two year period for past financial losses. If there had been any entitlement to compensation for future loss of earnings, I would have concluded on all of the evidence that it should be by way of a Smith -v- Manchester award of three years average current earnings on the basis that the claimant is employed by a large organisation which has been sympathetic to his disabilities and the claimant was optimistic that his employment would continue. However there would have been some risk that at some stage he would have had to cease that employment by reason of his disability.[77]If the claimant had been entitled to compensation for other future losses, taking account of the evidence I have read and heard from the care experts, the claimant’s own evidence, and the likelihood that his future disability will be assisted by him undergoing a pain management course and cognitive behavioural therapy, I have reached the following conclusions as to what I would have awarded on those items of future loss where there was a dispute. I would have awarded £2,743 per annum for a nanny until the claimant’s son Oliver is aged 12. I would not have made any award for a support worker on the basis that, with the therapies the claimant would receive and because he should be encouraged to be independent, there was no necessity for such a worker. I would have allowed the cost of gymnasium membership for the claimant himself to age 60. I would not have made any award for future physiotherapy beyond the first year. I would not have awarded the cost of a powered wheelchair, as the claimant would have been awarded the cost of a scooter and also a manual wheelchair. The cost of a plain shower seat would have been awarded and a sum of £500 for an armchair. I would only have awarded £600 per annum for future travel costs and I would have limited the extra costs of future holidays to £2,500 per annum.[78]Of course, I have great sympathy for the claimant and I am impressed by the efforts that he has made thus far to cope with his disability and to maintain his employment. However, he will be well aware that he did have a significant knee problem prior to Mr. Fleetcroft’s operation, and hopefully he will understand that for the reasons I have given I am unable to find that that operation was performed negligently or that the defendant was negligent in his post operative care.