Richard Booth QC has successfully defended a clinical negligence claim where it was alleged that the Defendant NHS Trust’s doctors had negligently failed to inform the Claimant, who was suffering from post-thrombotic syndrome following an ilio-femoral deep vein thrombosis (DVT) after giving birth, of an experimental treatment option which was only potentially available in a few centres in Europe. He led James Counsell QC (who took Silk during the trial) and was instructed by Browne Jacobson.
In Bayley v George Eliot Hospital NHS Trust [2017] EWHC 3398 (QB) the Claimant advanced a case primarily based on alleged negligent failures in her treatment, specifically stopping Warfarin after 6 months, failing to prescribe above-knee graduated compression stockings and failing to refer her to a vascular specialist sooner. These claims all foundered following effective cross-examination of the Claimant’s experts (including the “demolition” of the evidence of the Claimant’s expert physician), consideration of clinical guidelines and persuasive evidence from the Defendant’s experts (see e.g. paragraphs 18 & 48).
However, the Claimant’s fall-back position was that she ought to have been advised by the vascular surgeons of the existence in a few units worldwide of some interventional radiologists who were prepared to attempt ilio-femoral venous stenting for post-thrombotic symptoms following an ilio-femoral DVT. Although much of the literature on this emanated from the USA, the Claimant’s case was that she would have been prepared to pay privately for treatment in the UK or continental Europe, but would not have travelled to the USA.
The Claimant’s argument required the Court to consider and apply the test in paragraph 87 of Montgomery v Lanarkshire Health Board [2015] UKSC 11, namely:
“The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”
Was ilio-femoral venous stenting for chronic post-DVT symptoms a reasonable alternative or variant treatment in 2008?
The Court (HHJ Worster, sitting as a High Court Judge) concluded that it was not.
The Judge preferred the vascular surgery expert evidence of Professor Andrew Bradbury to that of Professor John Dormandy, holding that a reasonably competent vascular surgeon in 2008 would not have been aware of the possibility of ilio-femoral venous stenting as an alternative treatment in these circumstances. The lack of published papers in the UK on this treatment was an important factor here. There was scant evidence of where the procedure was being performed in the UK in 2008 or who was doing it. The published papers from the USA notwithstanding, this procedure was “nowhere near being accepted practice”. Although the procedure was possible, it was “a long way off being appropriate in 2008”. (paragraph 99)
The Judge concluded: “Put another way, (and without attempting to reformulate the test) not enough was known about this procedure by the reasonably competent vascular surgeon in 2008 for it to be Montgomery negligent to fail to inform the Claimant about it.”
The judgment is available on Lawtel.
