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Janet Birch v University College London Hospital NHS Foundation Trust

[2008] EWHC 2237

Rosalind English

8 December 2008,


Janet Birch v University College London Hospital NHS Foundation Trust 

[2008] EWHC 2237

ABSTRACT

The duty to inform a patient of the significant risks of a medical procedure was sometimes only discharged if the patient was made aware of an alternative procedure with fewer or no risks associated.

SUMMARY

The claimant had been admitted to hospital displaying atypical symptoms of vascular third nerve palsy. The consultant doctor recommended that she undergo an MRI scan in order to exclude the possibility that she was suffering from either a posterior communicating artery aneurysm or cavernous sinus pathology. There were no available MRI slots available at that hospital so her consultant requested that she be transferred to a neurology ward in a specialist hospital operated by the trust; later, she was transferred to a neurosurgical ward at that hospital. The trust's neurosurgeons decided to perform a catheter angiography; a mildly invasive procedure that had increased risks for people in the claimant's position. The associated risks of angiography were explained to the claimant, who then signed the relevant consent form. Subsequently, there were complications with surgery that resulted in a stroke. The effect of the stroke on Mrs Birch's life was traumatic. She was classified as disabled, suffered a weakness down the left side of her body, lacked function in her left arm and hand, and could not continue with a number of normal everyday activities.

She claimed damages against the defendant NHS trust for injuries that she sustained as a result of alleged clinical negligence in the performance of invasive surgery. She submitted that the decision to perform the catheter angiogram that led to her stroke was negligent; there had been no proper assessment of her history and condition and no proper risk benefit analysis of how her condition should be investigated; no reasonable body of doctors would have proceeded to perform a catheter angiography rather than an MRI scan;  she maintained, in addition, that the trust negligently failed to disclose the comparative risks of MRI scanning to her.

Held:

Judgment for the claimant.
 
As to the first allegation, there was at the time no consensus within the medical profession as to whether MRI or angiography was the better imaging method for diagnosing aneurysms of the type the claimant might have had. There were certainly other large and responsible medical units that would have performed angiography in the same circumstances. Furthermore, the relevant neurosurgeon had undertaken the relevant risk benefit analysis before concluding that the urgency of the case required angiography. That was a decision that could, in the circumstances, withstand logical scrutiny as a practice accepted by reasonable medical professionals, according to the standard established by Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 QBD and Bolitho (Deceased) v City and Hackney HA (1998) AC 232 HL. The decision not to use MRI was not, in itself, negligent.
As to the argument relating to consent, if there was a significant risk that would affect the judgment of a reasonable patient then, in the normal circumstances, it was the responsibility of a doctor to inform that patient of that risk so as to enable him to determine for himself which course he should adopt. The authorities applicable here were Pearce v United Bristol Healthcare NHS Trust (1999) ECC 167 CA (Civ Div), Chester v Afshar (2004) UKHL 41, (2005) 1 AC 134, Sidaway v Board of Governors of the Bethlem Royal Hospital (1984) QB 493 CA (Civ Div)  as well as Bolam and Bolitho. By logical extension of that principle, the duty to inform a patient of significant risks would not be discharged unless and until a patient was made aware that fewer or no risks were associated with another available and alternative treatment.

In the instant case, the claimant had been informed of the risks involved with catheter angiography but not the comparative risks of MRI. Although there was no requirement that a doctor should disclose comparative risks of alternative treatments in every case there were special circumstances in the instant case that justified the imposition of such a duty. The claimant had entered a neurosurgical rather than a neurology ward under a recommendation that she undergo MRI and would have selected the option of undergoing the less invasive procedure had she been properly appraised of the comparative risks. Accordingly, she had been subjected to an unnecessary procedure that had caused a stroke; the trust's failure to discuss the implications of the various imaging methods and the comparative risks rendered the trust liable to the claimant for breach of duty.

In this particular case, a judgment had to be made as to which was the most dangerous of the diagnoses possible for the patient, and that was an aneurysm. It just happens that an angiogram is the most appropriate investigative tool for aneurysm; it would not eliminate cavernous sinus pathology but it was necessary to rule out an aneurysm with 100 percent certainty. So it was decided that a catheter angiography was necessary.  First, however, Mrs Birch's consent needed to be obtained. Since the decision had been made to perform a catheter angiogram, the evidence of the consultant concerned was that it was not appropriate to discuss the alternative, less invasive option of an MRI with Mrs Birch, since it was not under consideration. The question was whether somebody should have discussed with Mrs Birch the different imaging methods, catheter angiography and MRI, their modalities and their risks.

Cranston J was troubled by the decision in Sidaway in which at least three of their Lordships suggested that in some circumstances the proposed treatment may involve a substantial risk of serious consequences which, notwithstanding reasonable medical opinion, must be disclosed to the patient - this appears to go against the spirit of Bolitho and Bolam, and as a result the matter was not as "straightforward" as it could be.

COMMENT (December 2008)

This judgment creates a quite important dilemma for health authorities in laying down the principle that unless the patient is informed of the comparative risks of different procedures they will not be in a position to give their fully informed consent to one procedure rather than another. It goes without saying that as a matter of law it is difficult to state in general terms when the duty to inform about comparative risk arises. Therefore there is a likelihood of a great increase in litigation in this area as courts are asked to decide on the basis of different facts whether such a duty has been discharged.

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