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News | Tue 8th Mar, 2016
James Byrne looks at the recent judgment in XYZ v Warrington & Halton NHS Foundation Trust  EWHC 331 (QB) (22 February 2016).
Click here for a link to the case report.
Though every case must be judged on its individual merits, the approach adopted by Mr Justice Dove in the recent judgment of XYZ is a useful guide of whether a surgeon should seek a second opinion before operating.
The Claimant was a teenage girl with an extremely troubled past. She had been sexually abused in her early teens, part of which included her abuser kicking and pushing her in the back contributing to her suffering a dehydrated L4/5 disc with a central disk protrusion and a localised oedema at the inferior part of the L4. The pain this injury caused was unbearable and had a deep and lasting impact on her life. Further, and understandably, the abuse had left the Claimant with a severe unresolved psychiatric condition, later diagnosed as a depressive disorder with prominent obsessional symptoms and anxiety. This left the Claimant feeling suicidal and suffering with anorexia.
The Claimant was referred to a spinal surgeon, Mr Shackleford, who initially recommended pain management, including epidural steroid injections. He was extremely reluctant to recommend a surgical solution given the risks/benefits involved, the Claimant’s young age and her ongoing psychiatric issues. Over the course of two years Mr Shackleford held off recommending surgery in the hope that there would be improvement in the Claimant’s condition. Sadly there was no improvement and the Claimant found that the pain treatment became less and less effective.
Alongside her physical treatment the Claimant was also undergoing psychological and psychiatric counselling. The Claimant’s psychiatrist, Dr Elliot, diagnosed that the Claimant’s back pain was a trigger that continually reminded her of the abuse she suffered and that any progress in the Claimant’s psychological and psychiatric treatment was being stymied by her physical symptoms. As a result, Dr Elliot wrote a letter to Mr Shackleford impressing upon him that she believed surgery should not be delayed and asking him to contact her if he needed any further information (bizarrely, Dr Elliot was later to give evidence in support of the Claimant’s case stating that had she known that the surgery carried a risk of making the Claimant’s back pain worse she would never have written her letter).
By this time Mr Shackleford had independently concluded the Claimant’s psychological, psychiatric and physical issues were interrelated rendering intervention less straightforward and heightening the risk of an adverse outcome were surgery to be undertaken. Nonetheless, weighing the risks/benefits of surgery (including Dr Elliot’s letter) against the lack of progress, Mr Shackleford reluctantly recommended that the Claimant undergo a lumbar microdiscectomy.
The operation was not a success; the Claimant’s back pain worsened and she developed Cauda Equina Syndrome – the Court was later to find that this development was an organic non-negligent complication of the operation.
The Claimant sued the Trust. There was no suggestion that the operation itself was conducted negligently. Instead, alongside unsuccessfully arguing a Montgomery v Lanarkshire Health Board consent point, the Claimant alleged that a reasonable surgeon, weighing factors including; (a) the claimant’s state of mind, (b) the fact that she was receiving psychiatric treatment and (c) that there was a causal nexus between the injury and her psychiatric condition, would not have operated on her without, first, obtaining a second opinion to operate, and/or, second discussing the proposed surgical intervention with the claimant’s psychiatrist to get her opinion.
Dove J was not referred to any specific case law setting out when how a court should approach the question of when a second opinion is appropriate. Instead, Dove J made reference to the well-known legal framework set out in the cases of Bolam, Sidaway and Bolitho as assisting him in determining whether Mr Shackleford had breached his duty to the Claimant.
Dove J correctly found that in the circumstances of the case, despite the significant psychiatric condition linked to the injury, that Mr Shackleford’s decision to operate reflected a standard of treatment accepted as proper by a responsible body of medical opinion, and that it was reasonable and defensible bearing in mind the risks and benefits which were at stake in assessing its suitability.
When considering the general duty of a surgeon to obtain a second opinion before operating the Learned Judge opined: “whilst there may be a reasonable body of competent medical opinion which would have sought a second opinion equally I am satisfied that there would be a reasonable body of competent opinion that would not seek such a second opinion in this case…the decision as to whether or not to operate was a question of clinical judgment and Mr Shackleford was entitled to conclude that he was the surgeon best placed to make any such judgment given, in particular, his detailed and extensive knowledge of the claimant’s case…Seeking a second opinion would have simply been an act delegating that decision out of the hands of the person who was best placed to make it…”
What was more interesting was the implicit position the Learned Judge took with regards to the need of Mr Shackleford to consult with the Claimant’s psychiatrist. The Learned Judge found that because Mr Shackleford had received a letter from the psychiatrist that appeared to be in support of surgery, essentially a ‘green light’, he was not required to consult with her further. This finding begs the question if Mr Shackleford had not had the letter or sought her opinion but had carried out the surgery in any event would he have been in breach? The Defendant’s own expert seemed to think so, he accepted that had there not been any communication from the Claimant’s treating psychiatrist he would have been critical of the decision to operate.
It goes without saying that every case must be judged on its factual merits. Dove J’s judgment does however provide useful guidance as to how the court will approach allegations of breach for not seeking a second opinion. The normal rule must be that a clinician does not need to seek a second opinion. This is common sense. If it were otherwise we would have a system where clinicians would be stalked by self-doubt, second-guessing and improper delegation of responsibility.
Nonetheless, no clinician is an island, particularly when their patient requires a multi-disciplinary programme of treatment. The more complex and inter-related the patient’s injuries the more likely it will be for a court to find a breach of duty if a clinician fails to consult his fellow doctors. A failure to consult not only risks the clinician being found in breach, it could well damage the patient’s health.
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