High Court trial success for clinical negligence claimant

High Court finds ‘chaotic’ consenting process and failure to plan for complications during surgery was negligent

Following a recent five-day clinical negligence trial, a judge at the High Court of England & Wales found an NHS Trust was negligent in a decision that will have implications for clinical practice both north and south of the border (HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust).

The claimant was born with congenital heart issues. She underwent elective open-heart surgery in 2022, when she was 25 years of age.

In order to gain access to her heart, the surgeon used an oscillating saw. The saw slipped causing catastrophic bleeding which led to the cutting off of the blood supply to her brain.

It then took so long for the surgeons to put the claimant on cardiopulmonary bypass that she suffered very severe hypoxic brain damage. The time was prolonged in part because another surgeon, who had been called in because of the emergency, attempted to cannulate one femoral artery, but the artery dissected, and another femoral artery had to be prepared and cannulated.

The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. That test, often referred to as the "Bolam" test or, more recently as the "professional practice test", is derived from the direction given to a jury in Bolam v Friern Hospital Management Committee [1957].

A claimant will therefore not succeed in establishing negligence merely by demonstrating that there is a body of competent professional expert opinion which disagrees with the judgment taken by the relevant clinician, provided that there is a body of competent professional expert opinion which supports that judgment as reasonable in the circumstances. The test recognises that a range of different views may legitimately be held about the same issue by different professionals. It is only where it is proved that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care that the test for medical negligence will be met.

The claimant alleged negligence on two grounds:

1. That the consenting procedure was inadequate and occurred too late. It was claimed that she would have sought a second opinion and postponed her surgery had an earlier and appropriate consenting process been undertaken by the defendant. She would have opted for a variant of the procedure to expose and prepare relevant femoral vessels in advance of the sternotomy to facilitate the establishment of cardiopulmonary bypass in the event of injury to the aorta;

2. That the pre-operative planning, preparation and management of the risks of injury to the aorta were inadequate, particularly in respect of the steps taken to mitigate the consequences of the known risk of aortic injury. Appropriate mitigation would have included exposing relevant femoral vessels in advance of the sternotomy. It was contended that this breach of duty resulted in unnecessary delay in establishing cardiopulmonary bypass.

The court held that the defendant failed to obtain the claimant’s informed consent for her surgery and that the surgeons failed to plan adequately for the possibility of the catastrophic event that occurred.

The court accepted the general thrust of the claimant’s expert’s evidence that the claimant’s aorta was sufficiently close to the rear of her sternum to mean that no surgeon could be confident of being able to open the sternum without causing injury to the enlarged aorta. As a result, the minimum level of precaution required was to expose and prepare the relevant groin vessels as a preparatory step, in case emergency bypass was required. The defendant failed to take this step. The court held that more than half of the time taken to establish cardiopulmonary bypass would have been saved, but for the negligence. As a result, the claimant sustained a prolonged period of hypoxia.

Furthermore, the court found that the mitigating steps should have been discussed with the claimant during the consenting process. Further it was “unacceptable practice” for the surgeon to see the patient for the first time on the day of the intended surgery in order to explain the risks of the operation for the purposes of seeking to obtain informed consent. The court agreed with the claimant’s expert’s view that the consenting process was “chaotic”.

The matter will proceed to an assessment of damages hearing in due course. The claim is estimated to have a value of over £5,000,000.

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