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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> SEM v The Mid Yorkshire Hospitals NHS Trust [2005] EWHC B3 (QB) (12 September 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/B3.html Cite as: [2005] EWHC B3 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY

		Claim No Claim No LS290167
		12 September 2005

Introduction

[1]    In this action the claimant ('Mrs M") makes an allegation of clinical negligence against Kathryn Fishwick ('Miss Fishwick') who is a consultant urogynaecologist and obstetrician employed by the defendant NHS trust. Mrs M presented with various symptoms, including uterine descent. On 22 July 1999 Miss Fishwick performed on Mrs M a surgical procedure which comprised a vaginal hysterectomy, McCall's culdoplasty, and anterior and posterior repair of the vaginal walls. McCall's procedure involves tying the utero-sacral ligaments into the vault of the vagina using non-absorbable sutures: the object is to prevent future prolapse. After the operation, Mrs M experienced pain, which has not resolved notwithstanding further surgical intervention. She now lives as an invalid, confined to her room and for the most part to her bed.

[2]     The primary complaint which is directed at Miss Fishwick does not relate to the performance of the operation, but to the pre-operative advice which was given (or, rather, not given) to Mrs M before she agreed to undergo surgery. It is common ground that Miss Fishwick did not advise Mrs M about alternative non-surgical and surgical treatments which might have been made available. It is accepted by the defendant that Miss Fishwisk's failure to give any such advice was negligent. The principal issues on liability have to do with the appropriateness of those alternatives, and what the consequences of giving such advice would have been. The word 'consequences' covers the response of Mrs M to such advice and, if I were to find that she would have chosen some treatment other than the hysterectomy which was performed, the effect of the alternative treatment. Thus, as so often happens in clinical negligence litigation, the focus in this action is on causation. In dealing with causation, Mrs M's psychiatric condition will became relevant: she suffers from a somatoform disorder, which (put very simply) is found where a patient has physical complaints which are not fully explained by a general medical condition.

[3]    Besides the primary allegation as to failure to advise about a range of treatments, two other matters have been raised against Miss Fishwick's management of the case. First, it is said that Mrs M should have been specifically advised about the use of non-absorbable sutures (Ethibond) in the McCall's procedure and the attendant risks. Secondly, it is said that the operation was more extensive than was justified by Mrs M's condition in that the posterior repair was not necessary. Both these contentions are disputed by the defence.

[4]    No order was made for split trials. It was agreed by counsel that I should not assess damages at the hearing, but this is not to say that I am to ignore all the heads under which Mrs M seeks compensation. It is part of her case that she should have lifetime care at the rate of 10 hours a day. That is said by the defendant to be unnecessary and inappropriate, and on that point I am called upon to make a finding in principle.

[5]    On the gynaecological and surgical issues arising on liability, two expert witnesses were called. They were Mr Christopher B-Lynch, who is a consultant obstetrician and gynaecological surgeon with the Milton Keynes General Hospital NHS Trust (Oxford Region), and Mr Janesh Gupta who is senior lecturer in the Department of Obstetrics and Gynaecology at the University of Birmingham and honorary consultant obstetrician and gynaecologist at the Birmingham Women's Hospital. On the psychiatric issues, I have also heard evidence from two consultants, Dr Susan Bradbury and Dr Peter Wood. As will appear, the areas of difference between the psychiatrists are limited. A much greater distance lies between the views of Mr B-Lynch and those of Mr Gupta, and it will be necessary to make a definite finding as to which of these experts is the more persuasive.

Background

[6]    Mrs M was born on 12 October 1957. She was therefore aged 41 years and 9 months at the date of the hysterectomy and she is now within a few weeks of what will be her forty-eighth birthday.

[7]     Mrs M was born and brought up in Cleckheaton. Her father was English and her mother was Austrian. She was the middle child in a family of three. She had a strict, unhappy and physically (but not sexually) abusive childhood. She left school at the age of 15.

[8]    Mrs M's first job was as a groom at a racing stable near York. This was a natural start to her working life, because she has always loved horses. Unfortunately, the possibility of a career in the racing world was cut short in 1975^[1] when Mrs M was kicked by a horse, one of her kidneys was ruptured and she spent some time in hospital. Subsequently, Mrs M was accepted for training as a nurse but, although she had no problems with the practical aspects of nursing, the academic part of the course presented difficulties, and she gave up after 14 months. While Mrs M was working as a student nurse, she began to buy ponies, break them in and sell them on.

She also had a horse, which she had bought out of money received in compensation for the accident which I have just mentioned. When Mrs M gave up nursing, she had to sell her animals.

[9]    Around 1977 Mrs M moved to Austria where she worked as an au pair for some three years. In 1980 Mrs M returned to England, living at home and working in a nursing home by day and in a bar in the evenings. Her one child, Simone, was born on 2 May 1984. Mrs M and Simone's father did not live together, and their relationship came to an end when she was three months pregnant.

She lived on her own with Simone and was dependent on state benefits, apart from what she earned for a few hours bar work each week.

[10]    In 1990 Mrs M met and married her husband. There are no children of the marriage. In 1991 Mrs M started a small business, run from home, of selling and fitting blinds. In 1992 she was again able to buy a horse and since then she and Mr M have rented land on which they keep a number of horses and ponies. Mrs M has always been interested in animal rights, and many of her horses and ponies have been rescue cases. For some time Simone was not doing well at school, and Mrs M educated her at home with the assistance of a visiting tutor. Mr M was working full-time outside the home and he must have been earning a good salary in order to keep the large number of animals for which Mrs M was caring. In addition he was helping Mrs M with the paperwork side of her blinds business.

[11]    This is Mrs M's account of her situation in 1999:

"I would describe myself as being a very active energetic woman who enjoyed the outdoor life such as riding and going for long walks with my dogs. I also enjoyed being a mother and a housewife and used to love to cook and bake and I enjoyed taking care of the home as well as running my own business from home. I enjoyed many activities with my family and there were never enough hours in the day."

[12]    So much for the family background. I now turn to Mrs M's medical history.

[13]    Mr Stuart Brown QC, who represented the defendants, extracted the following information from Mrs M's pre-1999 general practitioner and hospital records. Mr Timothy Hartley, counsel for Mrs M, did not suggest that this was in any way unfairly selective.

Date	Complaint/procedure etc.	Reference
6 March 1966	Appendicetomy	Hospital 314
March 1975	Accident – ruptured kidney	GP 2
1979	First abortion (in Austria)	GP 3
7 September 1980	Psychiatric referral –personality problems	GP3
19 November 1981	Second abortion	GP 8
30 April 1982 and thereafter	Supra-pubic pain - hospital referral	GP10, 11
13 April 1983	Pain in lower back - hospital referral	GP 12
21 April 1983	Emergency admission for abdominal pain	GP 14
1 June 1983	Third abortion	GP 16
21 October 1983	Acute admission for lower abdominal pain	GP 17
11 November 1983	Psychiatric referral - "nobody cares for her"	Hospital 294
2 May 1984	Birth of Simone
2 September 1986	Hospital referral for "profuse and bizarre pains." Perhaps taking too many diuretics. Consultant not sure if he will find a specific disease	GP 23 (see also GP 24, 25)
10 October 1986	Stress incontinence: no success with pelvic floor exercises	Hospital 271
23 December 1986	Hospital referral. Colicky upper abdominal pain	GP 25
21 January 1987	Cholecystectomy.[2] Very anxious on admission. Discharged on 26 January when condition satisfactory	GP 26, 29
10 and 24 February 1987	Hospital reviews. Suprapubic pain, back pain, nausea. Physiotherapy recommended	GP 28, 30
14 April 1987	Hospital review. Many micturition problems. Physiotherapy made no impression	GP 33
30 June 1987	Hospital review. Urge incontinence. Vaginal pain. Bladder drill programme not completed	GP 34
7 July 1987	Further review. Complaining "bitterly" of upper abdominal pains, but no cause found "despite all the extensive investigations"	Hospital 250
6 October 1987	Further extensive investigations inconclusive. Consultant to GP: "it is time now to call a halt to her hospital consultations"	GP 37
November 1988	Fourth abortion	GP 148 (entry for 15 December 1988)
26 February 1990	Pain in lower chest	GP 150
13 November 1990	Abdominal pain	GP 151
17 October 1991	Sweats, abdominal, back and pelvic pain	GP 151
14 August 1992	Vaginal discharge	GP 152
5 March 1993	Sore breasts (fall four months previously)	GP 153
6 January 1994	Pain under right breast and "other symptoms"	GP 153

[14]    The analysis of the material which underlies this summary, together with interviews with Mrs M, have led both the psychiatric experts to the conclusion that Mrs M suffers from a somatoform disorder. The common feature of a somatoform disorder

"is the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder (e.g., Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational, or other areas of functioning. In contrast to Factitious Disorders and Malingering, the physical symptoms are not intentional (i.e., under voluntary control). Somatoform Disorders differ from Psychological Disorders Affecting Medical Condition in that there is no diagnosable medical condition to fully account for the physical symptoms."^[3]

In their oral evidence the doctors mentioned a number of features of somatoform disorders: "illness behaviour"; exaggeration of pain or other perceived physical symptoms; poor reaction to surgery or other medical intervention; adoption of the role of an invalid. Dr Wood said that it was typical of somatisation disorder, which is the most serious form of somatoform disorder, that "a person is passed from one specialist to the next." Dr Wood's diagnosis of Mrs M is that she suffers from somatisation disorder. Dr Bradbury places Mrs M in the less serious category of undifferentiated somatoform disorder, but even she described this as a case in which she had found "gross psychopathology." Both doctors agreed that it would not be profitable to pursue the question of precisely how Mrs M's disorder should be classified.

[15]    The psychiatrists further agree that somatoform disorders are fluctuating conditions. The medical records which I have set out above suggest that during the 1980s the condition was, in the case of Mrs M, rampant (or, in Dr Wood's terms, "florid"), but that during the 1990s it was dormant or quiescent. Dr Wood attributes the change to the fact that, after a comparatively turbulent period in her life, Mrs Wood had settled down to marriage, bringing up and educating Simone, running her business and caring for her animals. In a word, she was fulfilled. The only significant point of difference between the psychiatrists, to which I shall have to return later in this judgment, is the degree to which Mrs M was suffering from a somatoform disorder when she consulted Miss Fishwick in 1999.

The hysterectomy

[16]    I come now to the events of the first six months or so of 1999. It will be necessary to examine the material which relates to this period in some detail.

[17]    Mrs M says that in early 1999 she noticed that, after riding or sexual intercourse, she had a lump in the opening of her vagina. This worried her, as she thought that she might have cancer. When she had the lump, she felt a dragging down sensation "as if my insides were hanging down below the opening of my vagina. If I took distalgesics, the sensation would go away." Accordingly she went to her general practitioner, who arranged for her to see Miss Fishwick

[18]    At the beginning of 1999 Miss Fishwick was 36 years old. She had qualified at the University of Liverpool in 1986 and, after the usual post-qualification rotation, had specialised in urogynaecology. She had been a member of the Royal College of Obstetrics and Gynaecology since 1988 and had been in post as a consultant at Dewsbury since July 1998. Between July 1997 and June 1998 Miss Fishwick had the good fortune to work at Louisiana State University in New Orleans where she had been awarded a fellowship in urogynaecology and reconstructive pelvic surgery. This post allowed for supervised operating with urogynaecolgists and urologists and, on her return to England, Miss Fishwick was able to incorporate much of which she had learnt in the United States into her work in this country. This included the use of McCall's procedure.

[19]    The general practitioner's letter of referral was dated 17 January 1999. The doctor informed Miss Fishwick that Mrs M

"gives a long history of worsening urinary incontinence. This seems to be the mixed type and had deteriorated over the years that she now complains of being constantly wet. She also complaints of a dragging sensation P.V., lower abdominal pain, worse after intercourse and after riding her horse, and she also complains of constant diarrhoea.

On examination she is extremely tender in the perineal region and also complains of an intermittent lump here, although I could find no evidence of this today."

[20]    Mrs M's first consultation with Miss Fishwick took place on 8 March 1999.

Miss Fishwick was informed by Mrs M of several urinary symptoms which were noted as "leaking constantly", "some stress leakage" and "urgency + + and urge incontinence." The notes also refer to there being "a problem with faecal incontinence and faecal urgency." Then, and most significantly for the purposes of this litigation, there is a reference to "? prolapse - feels lump in vagina and pain sufficient to avoid intercourse." The notes record that the patient was taking distalgesics four-hourly.

[21]    Miss Fishwick's response was to arrange for a pelvic scan, principally I think because of Mrs M's feeling of a lump in her vagina, and for a urodynamics test

in view of Mrs M's complaints about her bladder function. Miss Fishwick also referred Mrs M to another consultant surgeon, Mr Lyndon, to look into the patient's bowel function. Miss Fishwick's letter to Mr Lyndon includes this sentence:

"I must warn you that she is very, very anxious and has a tendency to get upset when describing her symptoms."

[22]    The next consultation was on 17 March 1999. By this date Miss Fishwick had obtained the result of the scan, but was still awaiting the outcome of the urodynamics test. The scan showed a small 3 centimetre ovarian cyst, and Miss Fishwick decided to review the patient in six weeks' time.

[23]    In the meantime Mrs M had been seen by Mr Lyndon. He wrote to Miss Fishwick at length on 22 April 1999. Mr Lyndon's findings can fairly be described as inconclusive, but some passages from his letter is of relevance in relation to Mrs M's state of mind in the spring of 1999:

"Many thanks for asking me to see this lady, who was very emotional and upset when I saw her in my Sigmoidoscopy Clinic. Whether this is relevant to her multiplicity of symptoms I am not sure, but certainly she complains bitterly of the symptoms which she has mentioned to you…

Following this examination she broke down in tears and was obviously extremely distressed."

[24]    The third consultation was on 26 April 1999. The urodynamics test showed a good capacity bladder which emptied without difficulty. This led Miss Fishwick to the view that Mrs M's bladder symptoms were not suggestive of any need for further investigation of (and possibly surgery on) her urinary system, but that they were consistent with a prolapse. Miss Fishwick's practice was to review such a patient for the purpose of re-evaluating her, putting together (as it were) both the clinical findings and the results of urodynamic testing. This review was arranged for 5 May 1999.

[25]    On 5 May 1999 Miss Fishwick saw Mrs M for the fourth time. The intended review was in fact being carried out by a colleague of Miss Fishwick's: Miss Fishwick was in the clinic and somehow was called in to deal with the case. Important though this consultation was in the context of this litigation, it may be summarised quite shortly. On examination, Miss Fishwick found that there was significantly more prolapse that when she had first seen Mrs M. There is no challenge to this finding. Miss Fishwick concluded that the prolapse was sufficient to warrant surgery. This conclusion is not challenged. Miss Fishwick proposed, and Mrs M agreed to undergo, a vaginal hysterectomy. It is accepted by Mrs M that a vaginal hysterectomy was, in the circumstances, one of a number of ways in which her condition could appropriately be dealt with. Miss Fishwick did not offer, or advise Mrs M about, any alternative treatments, whether non-surgical or surgical. It is accepted by the defence that this omission on the part of Miss Fishwick amounted to negligence.

[26]    Mrs M was admitted to Dewsbury General Hospital on 21 July 1999 and was discharged on 26 July. The hysterectomy, with the accompanying procedures, was carried out by Miss Fishwick on 22 July. Miss Fishwick made extensive operation notes, but as the operation was straightforward and no criticism is made of Miss Fishwick's performance, I do not think it necessary to set these out. Mrs M says that, when she woke up after the operation, "there was really, really bad pain in my pelvic area." A catheter had been inserted, but the removal of this did not make any difference. Mrs M said in court that she still has the same pain six years later.

Subsequent history

[27]    In the light of the basis upon which Mrs M's case has been presented, it will not be necessary to look at every aspect of her post-operative medical history. Put bluntly, the hysterectomy did nothing to solve her problems. The three years between 1999 and 2002, when the relevant medical records come to an end, are marked by numerous visits to the defendant's hospital and other hospitals, further investigations by Miss Fishwick and her colleague Mr A Trehan, references to consultants in other hospitals and in other medical disciplines, and further surgical intervention. Mrs M is in constant pain. She spends the whole of each day in a darkened bedroom. She requires assistance from her husband with almost every aspect of her life, from having her meals prepared to being assisted when she wants to go to the toilet. She is on a high daily dose of opiate drugs. Her husband lost his employment, because he could not cope with working outside the home as well as caring for his wife. Simone could not take the strain of living under the same roof as her invalid mother and has left home. Perhaps most poignantly, Mrs M has not felt motivated to go to see her horses (which were her pride and joy) for years, and they too are cared for by her husband.

[28]    If one goes through the hospital records from 1999 to 2002, one finds referrals of Mrs M to Mr Lyndon, whose name I have already mentioned in connection with her bowel problems, and to consultants in urology, obstetrics and gynaecology (at another hospital, for a second opinion), gastroenterology, dermatology, and anaesthesia and pain management (two consultants). The records do not make easy reading, and I may have missed the names of some other doctors. None of these people has been able to achieve anything constructive for Mrs M.

[29]    Miss Fishwick's colleague Mr Trehan is a consultant gynaecologist, whose special interest is in minimally interventionist ("keyhole") surgery. I do not propose to go through the many post-operative consultations which Mrs M had with Miss Fishwick (starting on 20 September 1999) and Mr Trehan, or all the procedures which were carried out by these doctors. I shall simply mention a few of the main dates.

[30]    As a result of a diagnostic laparoscopy which was performed at Miss Fishwick's request on 25 May 2000, adhesions were found in Mrs M's abdominal wall and small bowel. In the light of this, Miss Fishwick referred Mrs M to Mr Trehan so that he could consider laparascopic adhesiolysis. Mr Trehan examined Mrs M in his clinic on 14 June 2000. Mr Trehan found the patient to be "very, very upset" at the beginning of the consultation. Matters became worse when, on examination, Mr Trehan identified three of the Ethibond sutures from the McCall's procedure, attempted manually to pull out one (which was loose), causing considerable pain to Mrs M. Mr Trehan's notes of the examination show that he found "vault

tender + + +" and multiple adhesions. Overall, Miss Fishwick's surgery had produced a "good repair" and there was no sign of prolapse. Mr Trehan recommended a laparoscopic adhesiolysis, Mrs M agreed, and he put her on his waiting list. The notes record, in some detail, an explanation to Mrs M of the risks which would be attendant on the operation.

[31]    In the event, Mrs M shortly thereafter decided to have her adhesions dealt with by laparotomy which would involve the opening of the abdomen. In view of what had occurred on 14 June 2000 Mrs M at this stage did not wish to be operated on by Mr Trehan, but preferred to continue with Miss Fishwick. Miss Fishwick advised Mrs M that laparoscopic surgery would be the preferable way of proceeding, given the more invasive nature of laparotomy, and she advised Mrs M about the risks (including the risk of further adhesions) attendant on the latter procedure. Mrs M was, however, determined to stay with Miss Fishwick.

[32]    Mrs M was admitted to the defendant's hospital on 11 July 2000 and was discharged on 21 July. The adhesiolysis was performed by Miss Fishwick on 12 July.

There was not a great deal of evidence about this operation but from what has been said it appears that at this stage the volume of adhesions was not great and that the adhesions were easy to free.

[33]    Over the following year or so, Mrs M continued to experience pain and other symptoms, and her various hospital visits and referrals culminated in a meeting on 26 September 2001. This was attended by Mrs M, her husband, the acting medical director of the defendant, and a ward sister. At this meeting Mrs M was offered three choices: to do nothing; adhesiolysis to be carried out by Mr Trehan (Mrs M's preferred surgeon, Mr Aziz, being on leave); or a referral to another consultant at another hospital trust. Mrs M elected to have surgery performed by Mr Trehan.

She then had a meeting with Mr Trehan, whose notes record that he gave her detailed advice about the risk of injury to bladder and bowel which were inherent in the proposed operation, that (as I read the note) there might be a need for laparotomy, and that there was no guarantee that the operation would cure her pain. Mr Trehan also recommended that Mrs M obtain a further opinion before proceeding. She nonetheless decided there and then that she would go ahead, citing the opinions of Mr Aziz and of two gynaecologists, all of whom had recommended surgery of the kind proposed by Mr Trehan.

[34]    Mrs M was admitted to the defendant's hospital on 30 September 2001 and discharged on 10 October. Mr Trehan performed the adhesiolysis on 1 October. The operation turned out to be far from routine and lasted seven hours. It was described by Mr Trehan in his operating notes as "massive." Apart from other findings, the vaginal vault was thick with scar tissue. Mr Trehan put matters graphically in his oral evidence:

"The whole of the abdomen was full of adhesions from top to bottom.

The ovaries were stuck together. There were haemorrhoid areas in the pelvis.

I divided all the adhesions. I freed the ovaries. I excised [scar tissue from] the vaginal vault. I removed the [Ethibond] sutures. I could only reach the vault after cutting the adhesions."

[35]    Notwithstanding this extensive clearing out and cleaning up of Mrs M's abdomen, she continued to feel pain. She was seen for review by Mr Trehan on numerous occasions over the following months. I can go straight to 10 May 2002, when Mr Trehan performed a diagnostic laparascopy. Mr Trehan in his written statement described Mrs M as now having "a very clean pelvis." There were just two strands of adhesion to the anterior abdominal wall. The right ovary was normal, the left just lightly cystic. The picture was wholly different from what had presented itself to Mr Trehan on 1 October 2001. Mrs M was discharged from hospital on 15 May 2002. Objectively, she appeared to Mr Trehan to be recovering normally, "but she continued to complain of a variety of symptoms and indicated that she did not wish to continue under my care."

Liability: the central issues

[36]    This is a case of negligent failure to advise. In order to establish that the tort of negligence has been committed, Mrs M must show that loss flowed from Miss Fishwick's omissions. In order to establish loss, Mrs M has to satisfy the court that, if she had received proper advice, she would have elected for something other than the surgery which was performed on 22 July 1999; or, as an alternative route to success, that she would have deferred having that surgery until such time as other methods of treatment had been tried and had failed. All this involves nothing more than the application of ordinary principles of causation.

[37]    Mr Hartley has submitted that the approach which I have set out in the last paragraph and which I propose to adopt is wrong. Mr Hartley submits that the absence of informed consent effectively reverses the burden of proof and

"puts the operating surgeon or his employer in the position of being unable to say that the consequences of the surgery, whether occasioned by negligence in the surgery or not, were not caused by breach of duty."

Reliance for this is placed on the decision of the House of Lords in Chester v Afshar.^[4]

I am unable to accept that Chester v Afshar has this drastic effect. The starting-point in that case was the finding of the trial judge that, if the claimant had been properly advised as to the risks of the particular operation in question, she would not have gone ahead with surgery there and then. It was not necessary for her to go further and prove that she would at no time in the future have chosen to proceed with the operation. Here Mrs M has not, or at any rate not yet, reached first base. At this stage, whether she would, if properly advised, have proceeded with surgery on 22 July 1999, remains undecided. As Mr Brown submitted, in my judgment correctly, it will only be if I were to find that she would not have had surgery then, but would or might have had surgery at some later time, that Mrs M could possibly rely on the loosening of the conventional approach to the problem of causation which underpinned the decision in Chester v Afshar.

[38]    The central issues in this case have to do with advice and response. What advice should and would Miss Fishwick have given? How would Mrs M have responded?

[39]    The issues relating to advice go both to breach of duty and to causation. As to the content of Miss Fishwick's advice and the way in which it should have been conveyed, there must be a minimum standard which I will have to determine on the basis of the expert evidence. That goes to duty. When one comes to causation, the court necessarily finds itself in the "what if" school of history. This is not to say that one is entitled to speculate: far from it. But the situation which is postulated is that at the consultation of 5 May 1999 Mrs M was being properly advised by Miss Fishwick. This means that one cannot eliminate from consideration the particular views and experience of Miss Fishwick, provided of course that expression of those views and reliance on that experience would fall within the scope of what a doctor exercising proper skill and care would have said and done. Indeed, if Miss Fishwick

held a firm view as to the best way of proceeding, she would have been duty bound to express that view,^[5] so long as she did not do so in such a way as to pre-empt her patient's freedom of choice. The question "what would you do, doctor?" is frequently asked and has to be answered.

[40]    The issues relating to Mrs M's response fall wholly within the sphere of causation. Mrs M's evidence is that, if she had been offered a menu of treatments, she would have chosen that which was the least invasive. Evidence of this kind raises problems to which Hutchison J adverted in a helpful passage in his judgment in Smith v Barking, Havering and Brentwood Health Authority:^[6]

"However, there is a particular difficulty involved in this sort of case - not least for the plaintiff herself - in giving, after the adverse outcome of the operation is known, reliable answers as to what she would have decided before the operation had she been given proper advice as to the risks inherent in it. Accordingly, it would, in my judgment, be right in the ordinary case to give particular weight to the objective assessment. If everything points to the fact that a reasonable patient, properly informed, would have assented to the operation, the assertion being maintained, does not carry great weight unless there are additional or extraneous factors to substantiate it. By extraneous or additional factors I mean, and I am not doing more than giving examples, religious or some other firmly-held convictions; particular social or domestic considerations justifying a decision not in accordance with what, objectively, seems the right one; assertions in the immediate aftermath of the operation made in a context other than that of a possible claim for damages; in other words some particular factor which suggests that the plaintiff had grounds for not doing what a reasonable person in her situation might be expected to have done. Of course, the less confidently the judge reaches the conclusion as to what objectively the reasonable patient might be expected to have decided, the more readily will he be persuaded by her subjective evidence."

I will return to this passage later in this judgment.

Advice

[41]    In their joint statement Mr B-Lynch and Mr Gupta agree that the following options should have been offered by Miss Fishwick to Mrs M:

(1) doing nothing, apart from reassurance and physiotherapy;

(2) the use of medical devices, such as ring or Hodge pessaries;

(3) surgical alternatives to a vaginal hysterectomy with McCall's

procedure.

As to surgical alternatives, Mr B-Lynch put forward the proposition (with which Mr Gupta did not agree) that a procedure known as ventrosuspension should have been considered. In his closing submissions, Mr Hartley accepted that, on the evidence given in court, ventrosuspension was not a viable choice. In their joint statement, the experts agreed on the following:

(1) anterior repair;

(2) the so-called Manchester-Fothergill operation, but "this is dependent

on the surgical expertise of the surgeon";

(3) vaginal hysterectomy and anterior repair, i.e. without McCall's

procedure.

This last option leads on to what is a discrete question relating to breach of duty, namely, whether Miss Fishwick should have advised Mrs M about the use of non-absorbable sutures in McCall's procedure.

[42]    Both Mr B-Lynch and Mr Gupta have to a greater or lesser degree altered views previously expressed. Thus Mr Gupta in his oral evidence was more negative as to the appropriateness of repair of the anterior wall of the vagina alone as a suitable way in which Mrs M's condition could have been dealt with than one would have expected from what one reads in the joint statement. But, over the history of this litigation, Mr B-Lynch's position has changed much more radically. In cross-examination he agreed that the tenor of his lengthy first report on the case was that "no right-thinking gynaecologist would have performed a hysterectomy." He now accepts, as is made evident in the joint statement, that a vaginal hysterectomy was at any rate one of several appropriate procedures. I was not impressed by the justifications advanced in evidence for the trenchant view originally expressed, namely, that the first report was intended to be merely provisional or that it had been written without sight of Miss Fishwick's written evidence. For an expert to reverse his opinion on the issue which was originally at the heart of a case, whether a hysterectomy should have been performed at all, does not give me confidence in his views on other matters. Further, it appeared to me that Mr B-Lynch was at odds with the mainstream of modern gynaecological thought, in particular with regard to ventrosuspension and the Manchester-Fothergill procedure. Finally, he expressed his views in a manner which was at once defensive and unduly dogmatic. Where Mr B-Lynch's view differs from that of Mr Gupta, I have no hesitation in preferring what Mr Gupta had to say. I found Mr Gupta to be as impressive an expert witness as one is likely to encounter, balanced in his views, modest in his presentation of those views, and ready to make concessions when concessions were clearly called for.

[43]    It is accepted that Miss Fishwick should have given Mrs M the option of doing nothing by way of treatment of her condition, apart from engaging in physiotherapy. I do not think that Miss Fishwick, acting competently and regarding the case with which she was presented as one which was causing considerable distress to her patient, would have done much more than merely mention the possibility of a non-medical and non-surgical response. Miss Fishwick would have had regard to the failure of such responses to alleviate Mrs M's symptoms in the past.

[44]    Whilst it is accepted that Miss Fishwick should have offered pessaries, her view is that their use would have been short lived and that they would not have avoided the need for surgery. Mr Gupta's opinion is that pessaries are generally used for patients in two categories, elderly women, and women who have medical disorders which make them unfit for surgery. Mr Gupta said that pessaries can interfere with sexual intercourse, "so age is important." In my judgment, Miss Fishwick, acting competently and having regard to her own views, would have explained the use of pessaries to Mrs M, but would not have said anything which would have encouraged Mrs M to try them. Mr B-Lynch, under cross-examination, agreed that the patient's past medical history meant that it was unlikely that pessaries would succeed in alleviating her condition.

[45]    It is accepted that Miss Fishwick should have raised with Mrs M the possibility of merely repairing the anterior wall of the vagina. Miss Fishwick herself was doubtful whether this would have sufficiently dealt with Mrs M's condition.

Mr Gupta said in re-examination:

"An anterior repair alone traditionally was used to relieve stress incontinence and to deal with a solitary bladder prolapse with no other prolapse. Here there was descent of the uterus, so an anterior repair would not have done on its own. You get a much better long-term result with a hysterectomy, at the expense of the uterus. An anterior repair would probably not have solved the problem."

In my judgment, Miss Fishwick, acting competently and having regard to her own views, would have held out to Mrs M the option of an anterior repair, with the qualification that, in Miss Fishwick's opinion, such an operation would not have led to a resolution of her patient's problems.

[46]    The Manchester-Fothergill procedure, according to Miss Fishwick (with whom Mr Gupta agrees), involves the amputation of the cervix when the cervix is elongated and there is minimum uterine descent. It appears to me to be doubtful whether it would have successfully alleviated Mrs M's condition. More important, however, is the consideration that, according to Miss Fishwick and Mr Gupta, the operation is not one which is frequently performed. Mr Gupta said that, when he was a junior doctor in Leeds, he assisted at a few Manchester operations, but that he has never performed one himself. Miss Fishwick has assisted at only one Manchester operation, and it is not part of her own repertoire. Overall, these two doctors gave the impression that this was a somewhat dated procedure. In my judgment, Miss Fishwick acting competently and have regard to her own views and experience, would have held out to Mrs M the possibility of having the Manchester procedure, but without recommending it and with the qualification that such a procedure would have to be performed by some other surgeon.

[47]    Lastly, there is the question of a vaginal hysterectomy without the McCall's procedure and, accordingly, not involving the use of Ethibond or other non-absorbable sutures. This raises an issue on which the experts are sharply divided, namely, whether it was incumbent on Miss Fishwick to tell Mrs M that the McCall's procedure would entail the use of non-absorbable sutures and to advise her as to the accompanying risks. Miss Fishwick accepted in evidence that she would have given this information and advice, but the defendant does not admit that this amounted to negligence. As a matter of law, Miss Fishwick's view of her own omission cannot be determinative of the issue as to breach of duty, but it is not a matter which can be wholly disregarded.^[7]

[48]    The use of four non-absorbable sutures was inherent in the adoption of the McCall's procedure. Mr B-Lynch accepted that in 1999 non-absorbable sutures were widely used in gynaecological surgery. It is common ground that the use of such sutures carries risks of suture erosion (where the suture works its way through the vaginal wall), the granulation of tissue around the erosion, and sinuses (which can be painful). I think that Mr B-Lynch and Mr Gupta would agree that suture erosion is the most significant of the risks. Miss Fishwick learnt the McCall's procedure during her year in the United States and her evidence is that there has been suture erosion in about 10 per cent of her cases. Mr Gupta is of the opinion that such a degree of risk would not have been known in the United Kingdom in 1999, "so it would not have been a specific counselling issue." His own view is that the use of non-absorbable sutures is a matter of operating technique which a surgeon is not bound to mention to his patient, and he said that it was not his practice to mention the subject.

[49]    In my judgment, and notwithstanding Miss Fishwick's own considered view of the matter, she was not in breach of duty in failing to deal with the subject of non-absorbable sutures in her discussion with Mrs M. Mr Gupta struck me as an exceptionally cautious witness, a doctor who will (I am confident) go to great lengths to ensure that his patients are properly informed about a procedure which he is proposing. I accept his evidence. His general approach is, in my judgment, buttressed in the particular circumstances of this case by the fact that the use of Ethibond was, relative to the extent of the surgery and the use of absorbable sutures elsewhere, minimal.

[50]    I referred earlier to advice which Miss Fishwick should and would have given.

In my judgment, within the parameters of the range of options which she was obliged to lay before her patient, she would with some emphasis have recommended a vaginal hysterectomy with McCall's procedure. To suppose that Miss Fishwick would have advised in any other way appears to me to be unrealistic. The McCall's operation was one in which she had been recently trained and which she had, she says, performed on some 50 occasions during her year in Louisiana. The fact that it was the procedure which she in fact adopted, albeit without adequate pre-operative counselling, speaks for itself.

Response

[51]    I now have to consider what, assuming the giving of proper advice by Miss Fishwick along the lines envisaged in the last section of this judgment, the response of Mrs M to that advice would have been.

[52]    Mrs M's case, as presented by Mr Hartley in his closing submissions, appears to me to come to little more than an invitation to the court to accept the assertion made by his client in evidence. This, as I have already mentioned, was to the effect that, if given a choice, she would have chosen the least invasive form of intervention. She backed up this assertion by stating that she regarded a hysterectomy as "an old woman's operation" and (this was said for the first time in her oral evidence) that she would not have wanted to deprive herself of the opportunity of having another child.

[53]    I find myself wholly unable to accept this evidence. I have come to the conclusion that Mrs M would at the consultation of 5 May 1999, if given a choice, have elected for precisely the surgery which was in fact performed some weeks later.

I cited in paragraph [40] a passage from the judgment of Hutchison J in Smith v Barking, Havering and Brentwood Health Authority.^[8] The learned judge thought it right in the ordinary case to give weight to what he called "the objective assessment", attaching importance to the patient's post-operative view only if there were "extraneous or additional features to substantiate it." In this case, as I see it, there are indeed some highly unusual extraneous or additional features, but they weigh heavily against, rather than in favour of, the post-operative view.

[54]    At the initial consultation, Mrs M presented to Miss Fishwick with a variety of distressing symptoms. These were causing the patient considerable upset and anxiety. By 5 May 1999, the date of the fourth consultation, Mrs M's condition had deteriorated in that there was further vaginal prolapse. Assuming that Miss Fishwick had properly advised Mrs M, giving due weight to her own views and experience, she would have provided a menu of approaches but would have recommended a vaginal hysterectomy with McCall's procedure. In my judgment, Mrs M, acting as a reasonable patient and even if one leaves out of the equation her particular psychiatric condition, would have been likely to follow the surgeon's advice. Patients do normally follow the advice of a consultant, and I cannot see in this case any factors which lead me to suppose that Mrs M would have done otherwise.

[55]    It is when one comes to Mrs M's psychiatric condition that, in my judgment, the case on causation is shipwrecked. The following passage appears in the joint report of Dr Bradbury and Dr Wood:

"We agree that [Mrs M] would have been highly dissatisfied with any treatment intervention other than surgery, on the basis that individuals with the tendencies towards illness behaviour exhibited by Mrs M tend to seek out more dramatic interventions [rather] than more conservative ones. Given that her symptoms were at least partly psychogenic in origin, conservative intervention was most unlikely to modify them in any way, thus if the surgery had not taken place in July, it would have occurred a few month[s] later, after a more prolonged period of continuing complaint."

There are small shades of difference in the views taken by Dr Bradbury and Dr Wood. They come to no more than this: whether Mrs M's account of her immediately pre-operative mental state (which is to be found in paragraph [11] above) is accurate (as Dr Bradbury appears to accept^[9]) or whether from at least early 1999 the somatoform disorder was again rearing its head (which is Dr Wood's view). Both doctors agree that the disorder was well in place by the summer of 1999. It is, I think, sufficient for me to say that, from the general practitioner and other records which I have seen, it looks more probable than not that the period during which the somatoform disorder was quiescent had come to an end by early 1999.

[56]    Dr Bradbury examined Mrs M for over 3 hours. Dr Wood examined her for 65 minutes. Both psychiatrists have investigated Mrs M's medical records in some depth. They are agreed in their joint report as to what Mrs M's likely response to a choice of surgical or other intervention would have been. Each maintained his or her position under in the witness-box. This is, in my judgment, convincing evidence, to which I attach considerable weight.

[57]    Further, the view of the psychiatrists is reinforced by Mrs M's medical history, both before and after the operation in July 1999. As regards the earlier period, non-surgical procedures had from time to time been tried in an attempt to alleviate whatever her current symptoms were. There are references in the records to pelvic floor exercises, physiotherapy, change of diet, and a bladder drill programme. None of these had produced a result which was satisfactory to the patient. This must strengthen the likelihood that, if offered a proper choice on 5 May 1999, she would have elected for surgery. As regards the years from 1999 to 2002, Mrs M was prepared to be subjected to repeated investigations and surgical procedures, even when she was given very full warnings about the risks involved. Perhaps most significantly, when in 2000 she had the choice between a laparoscopy and a laparotomy, she decided to have what was by far the more invasive of the two procedures. When in 2001, a further surgical procedure was suggested, she had it performed by Mr Trehan (notwithstanding an earlier unhappy experience with him) rather than obtain a further opinion or transfer to another hospital trust.

[58]    My conclusion on this part of the case means that Mrs M's claim, at any rate as that claim was advanced in the pleadings, must fail.

An alternative approach

[59]    In his submissions Mr Hartley advanced what he said was an alternative route by which Mrs M could establish her claim. This was by way of an action for trespass to the person, the trespass being committed when the hysterectomy was carried out without Mrs M's informed consent. There had been an interference with Mrs M's right to bodily integrity, and she should be compensated for that interference by an award of damages equivalent to that which she would have received if she had made out her case in negligence. As a further alternative, Mrs M's right to choose for herself could be vindicated by the awarded of a sum of money as a solatium for the wrong done to her.^[10]

[60]    I accept that Mr Hartley's propositions have a logical coherence, but they would, if correct, have a radical impact on the law and practice which currently underlie clinical litigation. As Mr Brown observed, and correctly so in my judgment, if this alternative approach were right, there would have been no need for Chester v Afshar^[11] to have proceeded to the House of Lords. Ms Chester, who will have been represented by specialist counsel, would have recovered damages without persuading the court to stretch conventional notions of causation to the limit, as she had to do in order to succeed. This leads me to suppose that Mr Hartley's propositions could not, after full argument, be supported. In any event, it is an unsatisfactory method of proceeding to invite a court to adopt an unpleaded and radical solution to a case without the other party (and the court) having sufficient opportunity to investigate and consider all the relevant authorities in depth. That opportunity has not been available here. On such limited submissions as I have heard, it does not appear likely to me that the alternative approach would carry Mrs M to victory and, given the particular circumstances in which that approach has been deployed in this case, I am bound to reject it.

Subsidiary points

[61]    There are two other matters with which I should deal.

The posterior repair

[62]     At the beginning of this judgment, I mentioned that one of the complaints made against Miss Fishwick was that the surgery was more extensive than was required in that the posterior repair unnecessary. Although this complaint was supported by Mr B-Lynch, it appeared to fade in the course of the hearing and was not pursued in closing submissions. Miss Fishwick's evidence was that she must have done the posterior as well as the anterior repair because, when she was actually carrying out the operation, she had found a greater degree of prolapse than she had expected. If one accepts Miss Fishwick's evidence on this point, as I do, this subsidiary compliant has been disposed of.

Damages

[63]    I was asked by counsel to set out in broad terms what my approach to damages would be if I had found for Mrs M on the issue of causation. I think that, even though I have found against her, I should nonetheless deal briefly with the question of damages, in case this litigation proceeds further and my decision on causation is reversed.

[64]    The starting-point would be that the operation would not have been performed on 22 July 2000. The consequences of the operation having been performed then have been that Mrs M has suffered

(1) actual pain, for example, in the vaginal vault (which Mr Gupta found to be

still tender) and from adhesions;

(2) by reason of her somatoform condition, a much greater degree of

perceived pain;

(3) the various procedures which were carried out between 1999 and 2002; and

(4) again, by reason of her somatoform condition, the curtailment in her

previous manner of life since 1999 (in particular, being confined to her

room and being on opiate drugs).

An award of general damages would reflect all these matters. As regards special damages, Mrs M would be entitled to whatever may be proved to be the cost of care from the time of the hysterectomy until a date (say) six months after judgment. I would put this term to the period for which she should be compensated on the basis of the psychiatric evidence. Dr Bradbury and Dr Wood are at one in saying that for Mrs M to remain in her room, quite heavily sedated, is not only a wholly inappropriate way of dealing with her somatoform illness, but actually reinforces that illness. It is understandable, they say, that she should have adopted this mode of life pending the outcome of this action; but, once the result of the litigation is known, the time will have come for her to get out and obtain psychiatric treatment, even though the prospects of success may not be good. This appears to me to accord with the common sense of the matter. Further, to make an award for lifetime care would be to over-compensate Mrs M. I say this in the light of the joint view of Dr Bradbury and Dr Wood that surgical intervention would in any event have come about within a few months of July 1999, that surgery was likely to trigger an increase in Mrs M's illness behaviour,^[12] and that it is probable that the type of therapy which they recommend would have become necessary at some stage in her life. On balance, I think it unlikely that I would make an award in respect of the cost of therapy, on the basis that it would have become necessary by now in any event: but this point was not addressed by counsel, and I express no more than a provisional view about it.

Conclusion

[65]    From what I have said, it follows that the action must be dismissed.

Note 1   The date, which is unclear from the rest of the papers, comes from a hospital discharge summary dated 18 April 1975.     [Back]

Note 2   Removal of gallbladder.    [Back]

Note 3   DSM-IV, cited in Appendix E to Dr Wood.s report.    [Back]

Note 4   [2004] UKHL 41.    [Back]

Note 5   See Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285.    [Back]

Note 6   [1994] 5 Med LR 285 at p. 289.    [Back]

Note 7   Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334.     [Back]

Note 8   [1994] 5 Med LR 285 at p. 289.    [Back]

Note 9   This was the tenor of Dr Bradbury’s oral evidence, but in the joint report she had concurred in this statement: “We acknowledge that Mrs M presented herself as significantly disabled in the months prior to the allegedly negligent surgery. Although she has subsequently suggested that she was entirely fit and well before this surgery, this is not borne out by review of the contemporary medical records. She was complaining bitterly of symptoms. She had identified her horse-riding activities as being curtailed by her urinary incontinence.”    [Back]

Note 10   The suggestion of a solatium comes from the dissenting speech of Lord Hoffmann in Chester v Afshar [2004] UKHL 41, para. 34; but Lord Hoffmann was notably unenthusiastic about the suggestion.    [Back]

Note 11   [2004] UKHL 41.     [Back]

Note 12   Dr Bradbury qualifies this by referring to “any gynaecological treatment,in combination with a significant amount of pain”; italics supplied.    [Back]