The case of Mukhtar Malik which hinges on a question of fact considers the issues of informed consent and a negligent failure to offer alternative treatments.
In 2012, the Claimant attended his GP complaining of back pain and weakness in his legs. Matters deteriorated over the following two years, and, in July 2014 MRI scans revealed the Claimant’s spinal cord was compressed at the 10th and 11th thoracic vertebrae (‘T10/T11’) and there was cauda equina compression around the 3rd and 4th lumbar vertebrae (‘L3/L4’). Consequently, the Claimant underwent emergency surgery performed by Mr. Minhas, a consultant neurosurgeon working for the Defendant at St George’s Hospital in London. Although the emergency surgery was performed non-negligently, the Claimant’s recovery was slow. He had suffered neurological damage and experienced ongoing numbness and weakness in his left leg.
On the 27th of April 2015, the Claimant saw Mr. Minhas at an outpatient clinic. Mr. Minhas ordered further MRI scans which were reviewed with the Claimant at a consultation on the 13th of July 2015. Mr. Minhas advised that further surgery be undertaken at T10/T11 and L3/L4. This second surgery took place on the 13th of August 2015. No criticism was raised about the surgery itself or the Defendant’s post-operative care. Unfortunately, the second surgery left the Claimant suffering from incomplete paraparesis, confined to a wheelchair, and significantly worse off than he was before.
Both parties provided divergent accounts of what symptoms the Claimant reported at the consultation on 13th of July 2015. The Claimant alleged that by the 13th of July 2015 he was suffering from some leg weakness and sciatic pain, but that there had been a “huge improvement and he was able to move around without a stick” (para 38). He said that Mr. Minhas did not ask about intercostal pain. The Claimant recalled being shown MRI images but found he “could not understand them” and alleges that he was not informed of the risks of surgery or alternative treatments. He claimed that he was unaware of the possibility of surgery making things worse. It was the Claimant’s case that had he been informed of the risks and viable alternatives he would have declined surgery.
Mr. Minhas, however, recalled that at the consultation on the 13th of July 2015 the Claimant presented with “terrible pain” radiating from the left side of his back, with left-sided intercostalgia, and ongoing left-sided sciatic pain down to his leg and foot (para 43). In his witness statement, Mr. Minhas said that he believed it worthwhile to consider a further decompression at the thoracic level to alleviate the intercostal symptoms and a decompression at L3/L4 to resolve the left leg symptoms.
Mr. Minhas conceded that no non-surgical alternatives were offered, the reasoning being that the severity of the Claimant’s symptoms barred the effectiveness of such treatments, which would only offer temporary or minimal benefits. Finally, on the issue of consent, Mr. Minhas stated under cross-examination that he had informed the Claimant that the risk of the second surgery would be lower than he faced for his first operation, but that no spinal operation was without risk. Mr. Minhas also accepted that if no intercostal pain had been reported, he would have waited to see if the Claimant’s leg pain improved before advising further surgery.
The Claimant’s neurosurgical expert said that there were reasonable alternatives to surgery which should have been offered to the Claimant in light of their respective benefits and risks, such as nerve root injections and the greater use of analgesia whilst waiting to see if things improved. He also considered that a pain management strategy should have been discussed and offered as an alternative.
The Defendant’s neurosurgical expert suggested that the notes indicated that the Claimant’s pain was deteriorating over time and that he was not responding to the documented strong analgesia. Further, he said that injections into the nerve root would provide “only transitory benefits” (paragraph 77). Given the evidence that there was a six-month waiting list for these injections, which would not in any event be curative, it was reasonable for Mr Minhas to suggest surgery.
The Claimant’s expert in pain medicine set out the pain management options available to the Claimant but conceded their limited long-term effects. The Defendant’s expert in pain medicine said that there were no pain treatment options available to the Claimant in July 2015 that were likely to have resulted in any significant long-term reduction in his levels of pain.
HHJ Blair QC found the principal issues for the court’s determination were as follows:
i) was the claimant complaining of terrible intercostal pain on 13 July 2015 when he visited Mr Minhas’ clinic?
ii) if he was, how long had he been suffering from it?
iii) if he was, would a responsible body of competent and reasonable neurosurgeons have concluded that a significant proportion of that pain was radicular in nature and caused by compression to the left sided T10/T11 nerve root?
iv) if so, would a responsible body of competent and reasonable neurosurgeons have offered revision surgery at that location in the light of its reasonably and competently assessed potential benefits and risks?
v) even if they would, were there reasonable alternatives to surgery which, in the light of their respective benefits and risks, no responsible and reasonably competent neurosurgeon would have omitted to offer to the claimant?
vi) was the offer of surgery (and, if established, any reasonable alternatives which should have been offered) adequately explained to the claimant in terms of its benefits and risks so as to obtain his informed consent to the surgery performed?
vii) if a breach of duty has been proved on the balance of probabilities, applying the appropriate legal test, has the claimant also established that the negligence caused his injury and loss?
HHJ Blair QC considered the evidence and the testimony of both parties. By contrast with Mr Minhas who was found to be a “cogent and convincing witness“, the Claimant did not engender confidence “in his reliability and accuracy as a witness” (para 84, 85). The Court found inconsistencies between the Claimant’s oral account and his witness statement.
The Court found as a matter of fact that the Claimant had reported “debilitating intercostalgic pain” during the 13th of July 2015 consultation, albeit for a period of less than a couple of months (para 86). The pain at this time was “clearly acute and demanded some speedy intervention for its relief” (para 87).
HHJ Blair QC was satisfied from the expert evidence that a responsible body of competent neurosurgeons would have concluded that a significant proportion of the Claimant’s intercostal pain was radicular; caused by compression of the T10 nerve root and that this competent neurosurgical body would have offered revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015. HHJ Blair QC found no failing in respect of offering alternative treatments.
On the consent issue, HHJ Blair QC noted that the case of Montgomery identifies a duty for clinicians to take reasonable care to ensure a patient is aware of any reasonable alternative treatments. However, on the facts of this case, the alternative treatments were inappropriate or ineffective and, therefore not reasonable, such that the surgeon did not have a duty to advise the Claimant of them. Finally, HHJ Blair QC noted that even if a breach had been established, the claim would have failed on the issue of causation. Even if presented with alternatives, the Claimant would have had the surgery – he was in significant pain and wanted rapid relief. Accordingly, the claim was dismissed.
Carin Hunt, a barrister in Outer Temple’s Clinical Negligence team, commented on the case as follows:
This judgment contains a robust analysis of the facts in issue and the conflicting expert evidence before the judge. It is a weighty entry to the consent to treatment case law following the leading decision of Montgomery v Lanarkshire Health Board [2015] UKSC 11.<
As in other cases decided subsequent to Montgomery, the Bolam test was applied to the question of what constitutes a reasonable treatment alternative – see (v) in the list of issues determined by the Court.
