Fail to plead, fail to succeed
The case of Sindra Bilal & Anor v St George’s University NHS Foundation [2023] EWCA Civ 605 provides a useful reminder to ensure issues are pleaded if they are to be advanced at trial.
Factual Background
Mr Malik underwent emergency spinal surgery on the 14 July 2014 which was successful but left Mr Malik with neurological damage.
On the 13 July 2015 Mr Malik attended the outpatient clinic of Mr Minhas, Consultant Neurosurgeon, reporting terrible pain in the left side of his back with left side intercostalgia. Mr Minhas advised Mr Malik to undergo further revision surgery which was performed on the 13 August 2015.
Following the surgery, Mr Malik’s symptoms became worse, and he suffered paraparesis rendering him wheelchair dependent.
First instance
The allegations in the Particulars of Claim revolved around the consultation on the 13 July 2015. To summarise there was an alleged failure to obtain informed consent from Mr Malik, a failure to properly advise Mr Malik of the risks of further surgery, and the failure to recommend other treatment alternatives. Crucially there was no pleading which related to the failure of Mr Minhas to ascertain how long Mr Malik had been suffering from intercostalgic pain.
It was alleged that, had Mr Malik known the risks of the surgery, he would not have undergone the same.
At trial, the judge preferred the evidence of Mr Minhas and found Mr Malik had been complaining of serious and debilitating intercostalgic pain on the 13 July 2015 which demanded quick intervention for relief.
The judge found that a responsible body of competent and reasonable neurosurgeons would have offered the Mr Malik revision surgery. He was not persuaded that it was negligent Mr Minhas did not discuss other treatment options. The judge acknowledged that, whilst Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] AC 1430 (‘Montgomery’) identified the duty to take reasonable care to ensure a patient was aware of reasonable alternative treatments, in this case a responsible body of spinal surgeons would have concluded that there were no reasonable alternatives.
As to causation, the judge was not satisfied that Mr Malik would have rejected the revision surgery even if other alternatives were discussed.
Appeal
The estate of Mr Malik appealed on the basis the judge was wrong in law:
- To hold a responsible body of competent and reasonable neurosurgeons would have offered Mr Malik revision surgery without any knowledge of the duration of his intercostalgic pain.
- To hold that had Mr Malik had been made aware of reasonable alternatives and given his informed consent.
- To hold causation was had not been proved.
Ground 1
Lady Justice Nicola Davies considered the case of Lombard North Central PLC v Automobile World (UK) Ltd [2010] EWCA Civ 20 at §75 which set out ‘It remains a basic principle of our civil procedure that the factual case the parties wish to assert at trial must ordinarily be set out in their statement of case… It is essential to the conduct of a fair trial that each side should know in advance what case the other is making…’.
She highlighted that it was apparent from as early as the consultation letter, dated 13 July 2015, that Mr Minhas was not aware of the duration of Mr Malik’s pain, and further, it was apparent from his witness statement. She stated if it was an allegation that Mr Malik intended to rely upon it was necessary to plead it in the Particulars of Claim which was not done.
Lady Justice Nicola Davies also acknowledged that in cross-examination Mr Minhas had accepted he did not have knowledge of duration of pain, and this was not challenged by the appellant.
The first time an allegation relating to the duration of pain had been raised was in re-examination of the claimant’s neurosurgical expert. The judge had ruled this was a new departure from the pleaded case and disallowed the question. Lady Justice Nicola Davies found this was appropriate and that the judge rightly allowed questions pertaining to duration when it related to the issue of alternative treatment.
Lady Justice Nicola Davies further found that it was reasonable for the judge to draw an inference that Mr Malik’s pain had not resolved by the date of surgery. She had regard to the fact Mr Malik had not mentioned it to the operating surgeon his pain had resolved and the evidence of the medical experts on the presence of compression.
Grounds 2 and 3
Lady Justice Nicola Davies briefly addressed the other grounds despite the fact they were contingent on ground 1.
The analysis of ground 2 does provide a useful reminder of the guidance at §87 of Montgomery.
Lady Justice Nicola Davies was satisfied that the judge’s findings in respect of the alternative treatment reflected the expert evidence.
She set out that it was for the doctor to assess the reasonable alternatives as per Bolam and for the Court to judge the materiality of the risk inherent in any proposed treatment, applying the test whether a reasonable person in the patient’s position would be likely to attach significance to the risk (Montgomery).
She found the judge was therefore correct in applying the Bolam test before then considering whether Mr Malik had been made aware of the material risks involved in the recommended treatment and reasonable alternatives.
Finally, in respect of ground 3, she noted there was no challenge to the judge’s finding that Mr Malik wanted surgery quickly to relieve his pain. She acknowledged there was no evidential basis to support the appellants’ argument relating to causation.
Comment
It is not known whether, had it been pleaded Mr Minhas failed to ascertain the duration of Mr Malik’s intercostalgic pain, that Mr Malik would have succeeded on that point. However, it is evident that failing to plead the same is an instant barrier to any possibility of success.
The simple takeaway point from this case is to explore all aspects with the experts at an early stage and ensure issues are properly pleaded from the outset. Or if in the event it arises at a later stage, an application to amend is made as soon as possible. The case provides a clear reminder that the courts are unwilling to entertain new issues being advanced for the first time at trial.
