Hello, My name is nine Maloney on a barrister at Hardwick, specializing in clinical negligence and personal injury law. In this weapon are I'm going to have a look at the five key clinical negligence judgments so far in 2019. The first set of cases to look out show how the courts have been applying the Montgomery decision. In practice, we're going to look at specifically the cases of Mills Diamond. The case of Allyson is the other high court consent case off 2000 and 19 but is one really That is a question of whether the patient was, in fact told about a particular risk, not whether that risk of material or not. And so it's a simple case of whether the patient or GP West preferred as a witness Rodman anymore. Significant or more interesting for two floor to recap for Montgomery In 2015 the Supreme Court held that the Boland test was not applicable to certain issues of consent to medical treatment. There is no question, in other words, that are responsible. Body of doctors would have failed to have disclosed material, wrists off any particular treatment or failed to advise the patient on reasonable available alternatives. What is a material risk? Well, a paragraph 87 off judgment in Montgomery material Risk is described is weathering the circumstances off the particular case. A reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. It is not The Supreme Court. Make clear a question off looking at sensitives. And so it appeared that risk could be regarded as material if one likelihood of the consequence of caring is very small. But the potential consequences are very serious. For example, brain damage, as was the case of Mrs Montgomery's case or turns of Lee. Secondly, where the consequences are not particularly serious if they arise, but the likelihood off a risk off lesser injury. A caring it's greater or alternatively in thirdly, where the consequences are not particularly serious on where the likelihood of rescue caring is still relatively low. But the particular consequences or circumstances off the patient makes the risk or have the potential benefits of 10 treatment imports so moving on to have a look at Mills and Oxford. In this case, the claimants suffered with head AIDS and was diagnosed with a lion or a tumor in his brain. In fact, the glioma wasn't the cause of the headaches, and the patient wasn't told of this. The various reasons. Whilst that was a breach of duty, it didn't bear on causation. After diagnosis, the claimant was informed or three options to go forward. Firstly, they could simply monitor him. Secondly, they could take a biopsy to obtain more information or, as the nature did lying or thirdly, they could simply surgically remove it. It was held that that advice was setting out reasonably available treatment options to the patient. Satisfying one part of the Montgomery test have been presented with those options that came opted for surgery to reset the lion, but the training was not advised. There were different surgical techniques available. Microscopically assisted technique was far more commonly used among surgeons, and infected is only really the train mints treating surgeon that used the alternative endoscopic 10. That's significant because they're different risks associated with each approach, and the claim wasn't advised at all about the availability of the microscopic bread the endoscopic appraised, one that was used involved risk that would make it harder to control any bleeding should it arise during surgery. So the claim underwent the endoscopic Lee assisted surgery and suffered a stroke. Due to that complication arising, that complication was held not to have been caused by any unreasonable surgical skill. It was a recognized risks with surgery. It was held in mills. But failure to explain about the available surgical options on their comparative risk profiles was a breach of duty. In failing to enable the claimant to provide informed consent, it was held that have claimed, been adequately informed that he would've opted for the microscopically assisted approach and avoided his strike. In my view, this case probably got his Irish trial because it may be seen to take Montgomery one step further by saying that it applies not just to setting out general treatment options but even setting out differences between nuanced variations of the same type of surgery, particularly so where there are material differences in the risk profiles of each one, as they were in Mr Mills case. The second significant Consent case 2019 is a case of diamond and roll, Devon and Exeter and it just foundation trust. This was a court of appeal case where the training appealed against the first instance that decision where, despite breach of duty being found when the surgeon had failed to obtain the patient's informed consent before undertaking a mesh repair off her near it was found Plane would have chosen to have proceeded to a mesh repair even if they had been provided or were unable to provide informed concert. The plane was defeated on causation. The claimants suffered both physical and psychiatric injury risks that should have been disclosed and claimant included that there may be serious implications for any future pregnancy. But they would not completely conquer indicate that I become pregnant. Those implications would have been avoided had a simple sutra repair off the hernia been undertaken without. But where a sutra repair without nationally is undertaken, the risk of recurrence of the hernia would have been around 50% off cases in two years, and the chance off the head in your recurring would have been inevitable, almost certainly at some point in the future, the surgeons evidence is that well handy have informed you came that simple sutra repair without mesh was an available option. He would have said that 95% of surgeons would advise a mesh repair in those circumstances, and he would strongly recommended it to the plate. The trial judge, at first instance, found that had been provided those facts. Contrary to her evidence, she would have elected for a mesh repair because of the great prospects of success and because of pregnancy was not completely contra indicated by mesh repair. Further to that, the train was single. At the time, the trial judge found the time was a rational person, and there's electing a sutra. Repair without mesh would have been irrational because of the high recurrence rate. The claims appeal bad, arguing that the rationality test applied was not corrected law or, alternatively, that having found that it wasn't reached not to have offered a sutra repair as a reasonable alternative, it could not have been irrational for the claimant to then have opted for it. You can't have something that is both reasonable and Russian. The Court of Appeal upheld the first instance decision in favor of the defendant. The Court of Appeal held the judges approach was not actually to apply a test of rationality alone. The claimant waas on appeal, essentially trying to able to finding effect, which is extremely difficult. In an appeal case, the Court of Appeal there used the opportunity to set out the proper approach for assessing causation in a Montgomery consent case, which is that having found the breach, duty court must take account off the reasonable person in the patient's position and then to give weight to the characteristics off the individual patient claiming themselves. So the case of Diamond emphasizes that even if the claimant is believed in their evidence on things like their recollection of what they were or were not told by the surgeon, even if that amounts of reach duty, it can still be extremely difficult for a claimant satisfies judge that it's likely that they would walked in for certain treatment against the recommendation off their doctor. And, of course, claimants in those cases will always be looking back retrospectively and always through the prison off, knowing that they were injured by the approach that was taken. So that's a look at how the courts have been applying Montgomery in 2019. I'm going to look at next to cases involving interesting causation issues On the. To hear the practitioners should be aware of the cases of XO on Marshall in the 1st 1 I want to have a look at these eggs. This is a case where there was an admitted negligent overdoes off the muscle relaxing used to improve ventilation off premature babies, which claims in this case, waas. The claimants suffered something called PV el, which is a form of brain injury, usually calls by deprivation of oxygen. The noteworthy point off wider significance in this case was the judges distillation off the causation test once the parties had agreed that PV El was an indivisible injury and Mrs Justice. Yet, she said, the shame must prove that the overdoes did make a material contribution to the injury on the balance probabilities. Caiman does not need to prove the mechanism by which the overdose calls damage, only that it did so. However, consideration of the respective opinions on the mechanism of damage is inevitable. Even client, before arriving at any conclusions, the balance of probabilities just that it doesn't require medical certainty or indeed anything approaching that. And so what Mrs Justice yet was reinforcing is that the claimant only niece approved the fact that injury would have been avoided, not the route by which that would be impossible. However, in most cases the court will at least consider the mechanism of injury before making any finding on the central Corporation question. This was a case where the injury could have been either negligently, all know negligently caused on the facts and analysis of the evidence. In this case, the judge down that it was not negligently calls even on the lower causation, fresh hold off material contribution. So with that in mind that the training doesn't have to prove that mechanism by which damages suffered, but the route will be considered. We then look at the case of Marshall and Schemm Bree. This is a case where the GP admitted breach of duty, failing to refer the patient when they died to hospital after they suffered chest pains and breakfast nous. It was denied that the deceased would have survived had she been referred to hospital. There are a number of considerations in this case for the experts to address on causation, they included. Firstly, when would diagnosis that May, but for negligence. Secondly, when would treatment have been administered initially? Thirdly, what would the results off subsequent investigations have been? Fourthly, what's further treatment have been required, and finally, what effect with each medication had at each particular time. There are a whole host off hypothetical scenarios about what would have happened at various times, and this was a case involving a loss of scientific literature and statistics. The claim intended Defense experts agreed that but for the bridge, the deceased would have been triaged tested, diagnose of the problem re embolism arising from a DVT and leg. They would have been administered anti regulation for heparin about 11 to 12 hours before the patient actually died. And the experts were agreed that treatment over the course of those trapped 12 hours that would have been received but for the making would have prevented new classic. But they disagreed on the path at that stage on whether the faithful arrest would have been avoided. The most general statistic available in the case was that it was very rare for a patient with DVT and pulmonary embolism to die in hospital if they're admitted to hospital in time to receive treatment. This was generally agreed amongst the experts from their own clinical experiences, whilst the natural fact, a large pulmonary embolism had form and was fatal. This progressed in the absence of any hospital treatment whatsoever. Studies on the effectiveness off each possible treatment at the various hypothetically different stages didn't provide the definitive answer to causation. In this case, the judge explored a number of the possible hypothetical scenarios and family claimant. He relied on the general fan. But most people do not die a pulmonary ambulance and following admission hospital even know in this case the claimants DVT and embolism with large and therefore more risky than the average case. But factors weighing in favor of treatment were that they were not very elderly and what otherwise in good health. So, looking at the next slide, there are some enlightening passages from the judgement. Mr Justice stew it firstly in in fact, lost in the slides. He reiterated that the claimant needs to prove no more, then that Mrs Marshall would have probably survived had she been admitted to hospital. The claim does not need to prove the precise mechanism by which her survival would have been achieved. The reasoning in making findings on the evidence is then summarize in two paragraphs that are on slide. Mr. Dresses, shirts at this, the expert medical evidence and the statistical evidence demonstrates that at the time, and Mrs Marshall should have presented at a hospital, anybody rating her chances of survival would have put them is being very high. Tragically, tragically. She did in fact, die out of possible in the situation which occurred. Detailed analysis of such evidence as we have cannot lead the court to find that by such and such a mechanism or any particular stage, the course of events would probably have been different. This is overwhelmingly because a large number of unknowns went on to say in next paragraph to court in looking at the evidence as a whole must take a common sense and pragmatic approach to that evidence in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature, which has a number of variables. Have the statistical evidence in conjunction with the expert evidence have led to the conclusion that Mrs Marshall's chance and dying would have been assessed on presentation is only slightly better than 50 50 I would have found. For the defendant, however, the above evidence off the experts in conjunction with the medical literature drives me to be conclusion that on the clear balance probability she would have survived. So the upshot is it's pretty rare for statistics to be all encompassing and reflect the precise facts off any particular case. It's clinical impression from experience experts supported by statistics that's key to proving causation, those sorts of cases. And in that case, and Marshall, there are all manner of theories on mechanism of damage or the route as how the patient whittle would not have avoided palm. But only one question truly need to be answered. Improved by the claimant. Would they have survived but for the negligence? So that's the causation cases, and we're four out of five cases down the final ones, and the cattle is the case of Pumphrey. In this case, the claimants suffered an injury during spinal decompression surgery. There is a dural tear which was not caused by any defective surgical technique. The risk off that dural tear a caring in this type of surgery was generally recognized to be in the order of around 7% the judge found on the fact that there was breached duty in a negligent 10 day delay in undertaking the spinal decompression surgery. The claimants argued that had the operation being carried out when it should have been the risk of the injury, caring would still have been 7% and therefore there was a greater than 50% chance that the claimant would have avoided injury. But for next delay, however, on the facts, the judge found that the Dural tear probably would have occurred 10 days earlier, had the operation before then, same surgeon would have been operating. The same equipment would be used on a train. Its anatomy would have been exactly the same. The general 7% statistic off that risk eventuated does not mean that every patient is precisely the same level. Risk It's immigration 7% some of less than so so. But even if it was found that risk on the alternative date would have infect investing 50% the judge said they would still have found against the claimant and net was because the scope of the defendant duty did not extend to avoiding a recognized risk of surgery. The suffering of General Tear was not connected with the delay. The delay hadn't made claim any MAWR predispose to suffering a general tear or indeed, any complications with the spinal surgery. The claimants underlying condition also have not been worse symbol materially worsened by the delay in operating Death, of course, is to be contrasted with consent cases where the case of Cheston Ashar modifies the ordinary but for causation test to allow a recovery of damages where it's down, that the claimant would merely have delayed rather than avoid surgery had they been informed off the full facts or the risks of the surgery on the availability feel alternative surgery. That is so, of course, provided that there was less than 50% chance off the ingredients effort on a later occasion. And the reason why we have different approach in court consent cases versus delay cases is because avoiding a recognized risk of surgery is squarely within the scope off the defendant duty to enable informed consent be provided. So that is my selection off five key clinical negligence decisions from 2019. 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