Key Facts
- •Mr. Malik underwent elective spinal surgery in August 2015, resulting in spinal cord injury.
- •He experienced intercostal pain, in addition to pre-existing spinal problems.
- •The surgeon, Mr. Minhas, did not inquire about the duration of the intercostal pain before recommending surgery.
- •Mr. Malik's claim was dismissed at first instance.
- •The appeal focused on whether the surgeon's failure to inquire about pain duration constituted negligence.
- •Conflicting evidence existed regarding Mr. Malik's pain complaints and the information he received about the surgery's risks.
Legal Principles
Bolam test for medical negligence: A doctor is not negligent if acting in accordance with a practice accepted as proper by a responsible body of medical men.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 583
Montgomery test for informed consent: Doctors must take reasonable care to ensure patients are aware of material risks of injury inherent in treatment and reasonable alternatives.
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Chester v Afshar: Narrow modification to the 'but for' test of causation in cases where a clinician breaches their duty to advise on risks.
Chester v Afshar [2005] 1 AC 134
Wisniewski: Courts may draw adverse inferences from the absence or silence of a witness with material evidence.
Wisniewski v Central Manchester Health Authority [1998] PIQR
Importance of pleading specifics in clinical negligence claims to ensure a fair trial.
Lombard North Central PLC v Automobile World (UK) Ltd [2010] EWCA Civ 20
Outcomes
Appeal dismissed.
The failure to inquire about the duration of the pain was not pleaded, raised with experts, or put to the surgeon in cross-examination. The judge's findings on pain duration and the reasonableness of the surgery were supported by the evidence.