Hazhar Shally v Imperial College Healthcare NHS Trust
[2023] EWHC 1304 (KB)
Sidra Bilal & Anor v St George's University Hospital NHS Foundation Trust
13 June 2023
[2023] EWCA Civ 605
Court of Appeal
A man sued his surgeon after surgery caused injury. He claimed the surgeon should have asked how long his rib pain lasted before operating. The court said the man's lawyers didn't raise this point properly in the first place, and dismissed the case because there wasn't enough evidence to prove the surgeon was wrong.
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.