CLINICAL NEGLIGENCE APPEAL – FINDINGS MUST BE JUSTIFIED ON THE EVIDENCE!

pi_catherine_duffy By Catherine Duffy

CLAIRE WORRALL and DR HELENA ANTONIADOU [2016]EWCA Civ 1219

Court of Appeal (Civil Division) – Lord Justice Tomlinson and Lord Justice David Richards

Hearing date 01/11/16 – Judgement published 06/12/16.

APPEAL

This was an appeal against an order made by His Honour Judge Davey QC in the Bradford County Court on 05/06/16 where the judge awarded damages in the sum of £14,378.47 to the Claimant/Respondent, Mrs Claire Worrall (C) against the Defendant/Appellant, Dr Antoniadou (D).

 C alleged that she had undergone a breast augmentation operation in reliance upon negligent advice given by D, the consultant plastic surgeon who performed the operation. Within 10 months of the operation C was advised that a more invasive procedure, an uplift or mastopexy, was necessary. It was C’s case that prior to the breast augmentation procedure she was advised by D that a mastopexy would not be needed for another 5-10 years. C’s case was that had she not received that advice she would not have undergone the breast augmentation which she did, at the age of 28. She would have waited until her mid-30’s and undergone a combined augmentation and mastopexy procedure.

It is common ground that if C was given the advice alleged; that advice was negligent. D denied having given such advice.

The judge found that D did not given the advice alleged. The judge did find however that C left her single pre-operative consultation with D with the impression that she would have at least 5 years after the breast augmentation procedure before a mastopexy would be necessary. D allowed C to leave the consultation with this impression, albeit unintentionally, and D was in this regard negligent. D appealed the judge’s finding.

FACTS

In summer 2010 C was 28 years old. After breastfeeding her 4 children C’s bra size had reduced from a DD to a C cup size and she looked into breast augmentation surgery. At the same time C was in the process of getting divorced from her 2nd husband and was planning her marriage to her 3rd husband in November 2010.

C attended a pre-operative nursing assessment at the MYA clinic in Leeds on 27/06/10, a patient care co-ordinating appointment in 24/07/10 and another nursing assessment on 27/07/10. C made it clear throughout her dealings with MYA that she did not want an uplift operation and if this was the surgeons advice, she would not go ahead with the breast augmentation procedure.

C met D for the first time on 28/07/10. However on 24/07/10 C had paid a deposit and taken advantage of a discount on the fee for the operation which had come about as a result of a cancellation. The operation was booked for 03/08/10. This was however less than 21 days after C’s consultation with D and C had to sign a disclaimer to this effect. C signed the disclaimer on 27/07/10; D signed on 28/07/10.

C had received no advice from D prior to signing the disclaimer. The judge observed that this was a good indicator that C was determined to have the augmentation if she sensibly could.

The judge indicated that he that he thought that insufficient time had been allowed for the consultation with D, however Lord Justice Tomlinson stated that this was not justified, the judge should have concluded that the time allowed for the consultation was adequate.

C had pleaded that at the consultation D had advised her that whilst she would eventually need uplift surgery, mastopexy, this was not likely to be for another 5 to 10 years after the augmentation procedure. D maintained that she had said no such thing and it would be irresponsible to do so because it is not possible to put a time scale on such matters and all she had told C was that she would need an uplift sooner or later.

The judge made the following findings in relation to the consultation:-

“27. I am satisfied that D did not explicitly give a timescale of five to ten years before mastopexy was necessary because that would have been an irresponsible thing to say and I cannot imagine that she did. However, I am equally satisfied that that sort of timescale was mentioned by someone at the consultation and that C has not invented it. I am sure that it was mentioned when C was pressing D for a timescale as to when mastopexy would be needed….”

28… “I am satisfied that when D was pressed by C she was non-committal as she has always maintained she has been about the timescale before mastopexy would be necessary, and whatever the precise wording used, ‘sooner or later’ represented the gist of what Dr Antoniadou was trying to say to C. However I am also satisfied that C went away from that consultation with the impression that she had at least five years before mastopexy would be necessary….”

30… “I am satisfied that, D albeit unintentionally, allowed C to go away from the consultation of 28th July 2010 under the impression that she had at least five years before mastopexy would be required.”

Discussion

  1. In order to consider the reliability of the central findings Lord Justice Tomlinson considered other findings made by the judge:-

– The judge found that C was absolutely determined to have the breast augmentation operation if possible and she did not really want to hear any suggestion that she should not;

– The judge found that C was prone to making mistakes, for example, C stated in her evidence that D told her the implants were guaranteed for life, which would be a very surprising thing for an experienced consultant plastic surgeon to say and was not consistent with D’s contemporaneous handwritten note.

– The judge found that it was not always easy to follow what D was saying; English was not D’s mother tongue and she spoke very quickly.

– The judge found that the conditions were “ripe for C to get hold of the wrong end of the stick” and that is exactly what had happened.

  1. The Judge concluded that C had left the consultation having misunderstood what D said, or perhaps did not say. The judge concluded that D gave a non-committal answer to a question that C did not say in evidence that she had asked. The judge did NOT find that D either knew or ought to have known that C was labouring under a misapprehensions and this was NOT suggested at trial. The judge found D guilty of negligence because she failed by a non-committal answer to dispel an impression which she had NOT expressly given and which she neither knew or ought to have known C had derived.
  2. Lord Justice Tomlinson stated this cannot be right and it was certainly not fair to D.
  3. The judge ought to have asked whether anything said or done by D at the consultation would have been reasonably understood by a reasonable patient in C’s position as an assurance that it would be in the order of 5 to 10 years before she would require a mastopexy. A defendant medical professional ought not to be liable in such circumstances unless he is responsible for the patient getting hold of the wrong end of the stick, or having realised that the patient is in danger of getting hold of the wrong end of the stick, or where the he ought to have realised, he takes no steps to dispel the misapprehension. Lord Justice Thompson said that the judge would NOT have been justified in answering the relevant critical question in the affirmative.
  4. Lord Justice Tomlinson stated that even on the basis of the judge’s own findings, he was not entitled to reach the conclusion that he did. The judge found that C had pressed D for a time-scale within which the mastopexy would be required, referring to a period of 5 years or 10 years, however there was no evidence to support the finding that C had asked about time scale in these terms.
  5. Further it was never put to D that she was asked what she meant by “sooner or later,” nor was it put that it should have been clear to D that without a more precise response about the time-scale C would reasonably be left with the impression that that imprecise period could extend to 5 to 10 years.

Conclusion

  1. Lord Justice Tomlinson concluded that the judge was NOT justified in concluding that C’s enquiry was couched in a manner that would have made it reasonably apparent to D that a non-committal answer could reasonably be interpreted as an assurance that a mastopexy would not be necessary for a period of up to 5 to 10 years. The judge was “speculating in a manner which lacked any sure foundation. The finding was not open to him.”
  2. Lord Justice Tomlinson went onto state that even if C did mention a period of 5 years at the consultation on 28th July 2010, there was no basis upon which the judge could properly conclude that anything said by D on that occasion could reasonably have been regarded as an assurance that a mastopexy would not be required for a period of 5 to 10 years. “This is with respect a speculation too far upon which D was not asked at trial to give her comment.”
  3. Lord Justice Tomlinson concluded that the judge’s view in favour of the Claimant could not stand. Further the judge’s finding on causation necessarily falls with the conclusion that D did not give negligent advice.
  4. Lord Justice Tomlinson stated that a re-trial was not appropriate. C had failed to prove her case that D advised her that a mastopexy would not be required for 5 to 10 years. The judge came up with a version of events unjustified on the evidence and which did not result in a justified conclusion that D was negligent, since it was not demonstrated that D ought reasonably to have appreciated the misapprehension under which C was labouring.
  5. The appeal was allowed and the claim dismissed.

Lord Justice David Richards agreed.

Comment – Old news you might think – but it’s clear, findings must be justified on the evidence!

Link – http://www.bailii.org/ew/cases/EWCA/Civ/2016/1219.html

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