More on the clinician’s duty to warn a patient of risks

A recent case on consent and the impact of Montgomery is Duce v Worcestershire Acute Hospital NHS Trust [2018] EWCA Civ 1307.

In 2008, the appellant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy after suffering from heavy and painful periods. Following the surgery, she suffered neuropathic post-operative pain and claimed that the trust had negligently failed to warn her of the risk of developing chronic post-surgical pain (CPSP). The trial judge’s finding that the trust had not been negligent was upheld by the Court of Appeal.

The case illustrates 2 points arising out of the case of Montgomery.  Firstly, as Medio-Legal Minder has previously pointed out, the effect of the decision in Montgomery is retrospective so that a claim can be brought for a failure to obtain informed consent many years ago.

Secondly, and more significantly, the claimant has to prove that the clinician was or should have been aware of the risks which it is now said the patient should have been warned about.  That requires expert evidence to determine.  Medical knowledge changes, and in Duce it was common ground between the experts that CPSP was not common knowledge among gynaecologists at that time, and that “there was no clear evidence of that specific risk” at that time. Therefore in 2008 there was insufficient understanding among gynaecologists of the existence of a risk of “chronic pain, or of neuropathic (or nerve) pain, whether that was long term or short term” to justify the imposition of a duty to warn of such a risk.

Not surprisingly, a clinician is not required to warn of a risk of which he cannot reasonably be taken to be aware at that time.

[Who or what is medico-legal minder?  Terms and conditions apply]

The dangers of an over-benevolent approach to medical report writing

The recent case of Mirajuddin Molodi v (1) Cambridge Vibration Maintenance Service (2) Aviva Insurance Ltd [2018] EWHC 1288 is a useful reminder for the expert witness not to leave common sense at home when reporting on a claimant’s injuries, particularly in a minor claim, or in a claim where there is no, or little, physical evidence of injury.  The case itself was concerned with a claim alleging a minor whiplash injury.

Following a low velocity road accident in February, the claimant saw his GP the day after the accident, but did not seek any treatment thereafter and, in his claim notification form issued in mid-March, he confirmed that he had not taken any time off work or sought any medical treatment as a result of the accident. At the end of March he was examined by a doctor instructed by his solicitors. The resulting medical report indicated that he had an ongoing whiplash injury; that he had had to take time off work in consequence; and that he had been involved in only one previous accident.

In Molodi the judge emphasised that judges had to approach whiplash claims with a degree of caution, if not suspicion, because the problem of fraudulent or exaggerated whiplash claims ‘was well recognised’.  A genuine claimant who had suffered injury, should of course recover damages.  In such a case involving minor injury it was said that the claimant would normally have sought medical assistance from their GP or by attending hospital; would have sought further medical assistance in the event of non-recovery; would have sought physiotherapy without being prompted by a solicitor; and would have given a relatively consistent account of their injuries, the progression of their symptoms, and the timescale of their recovery. Although 100% consistency and recall could not reasonably be expected, the courts were entitled to expect a measure of consistency.

In contrast if a claimant was shown to be demonstrably untruthful, or if their account was so hopelessly inconsistent that their evidence could not be regarded as reliable, the court should be reluctant to accept that the claim was genuine.

Experts are aware no doubt that with many minor claims, medical evidence is at the heart of the claim.  Therefore the history given to the medical expert by the claimant has to be as accurate as possible. That history includes the account of previous accidents because that goes to the question of the cause of any symptoms complained of.  If a claimant had been involved in a number of previous accidents, as in fact turned out to be the case in Molodi, then the medical expert would need to look more closely at whether the injuries were consistent with the reported circumstances of the accident.

In a case where a claimant’s account was demonstrably untruthful or so hopelessly inconsistent as to be unreliable, the court should be reluctant to accept the claim as genuine.  Here, the trial judge found that the claimant had exaggerated the seriousness of the injury to some degree but still awarded some damages to the claimant. On appeal the judge dismissed the case because the claimant’s account was so unreliable that the court could not accept that the claim was genuine.

In claims generally, but in particular in the case of minor injuries, the medical expert must take care to address the history of the index event and claimed injury, and to compare the account taken from the claimant with that available, if at all, from the records.  The medical expert must also be careful to take a full medical history of relevant past symptoms, and of past accidents, in order to be able to address the issue of causation of symptoms.  It is not for the expert normally to express an opinion as to whether the claimant’s account is genuine or not, but it is for the expert to indicate any potential inconsistencies between the account given by the claimant and the available records, or between what the expert is able to give as the expected course of symptoms and their impact, and the course complained of by the claimant.

An absence of medical appointments and an absence of a request for treatment, is not necessarily proof of fraud, for there may be a number of reasonable explanations, but is something which calls for an explanation from the claimant, and for comment by the medical expert;  similarly inconsistency between the claimant’s account and the medical history as provided by medical records.

The appeal judge in Molodi criticised the trial judge for taking ‘a far too benevolent approach’ to the claimant’s evidence which was demonstrably inconsistent, unreliable and untruthful.  For similar reasons the medical expert should ensure that the report is not just a reiteration of the claimant’s account but provides a balanced account which, while leaving the judge to decide, on all the evidence, whether the claimant was untruthful, indicates those matters which the expert’s expertise calls him or her to regard as inconsistent, unlikely or unusual.