Thefaut v Johnston – A game changer for consent in elective surgery

1. If you have a spinal surgery case where a patient has suffered a non-negligent complication you need to read Mr Justice Green’s careful analysis of the law of consent post-Montgomery in Thefaut v Johnston [2017] EWHC 497 QB, handed down last week on 14th March 2017.

The facts

2. Mrs Thefaut agreed to undergo discectomy which was performed by Mr Johnston, a vastly experienced spinal surgeon who performs 600 or so similar procedures a year. In the operation itself and/ or the subsequent revision procedure Mrs Thefaut suffered nerve damage which has left her with severe, constant pain in her back and leg.

3. At the heart of this case is a letter of advice sent to the claimant by Mr Johnston in which he advised her of the risks and benefits of surgery as follows:

“Further to my telephone conversation with you today I am writing to confirm that I understand you have had facet joint injections which did not help with your pain. I therefore think that as your symptoms are deteriorating it would be entirely reasonable to recommend surgery to your back. By taking away part of the disc and trimming up to the bone that is compressing the nerve passing down to your left leg I think that there should be at least a 90% chance of ridding you of your leg pain. As I explained to you back pain is not quite as likely to settle, but as your symptoms have come on at the same time I think that there is every chance that your back pain will settle as well. The risks of surgery are fortunately very small. There is a 0.1% chance that I could damage the nerve (giving you weakness in cocking up your left foot) and there is a 2% chance that you could have a leak of spinal fluid which would delay your discharge from hospital by a few days but would not have any long term consequences. If you would like to go ahead you can book in for surgery by contacting Jackie on the above number and she will arrange this for you.”

The law

4. Green J reminded himself of paragraph 87 of Montgomery:

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo… The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of 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.”

5. He then noted that counsel had (correctly in my view) agreed that the test of what is a ‘material risk’ is a mixture of subjective and objective:

“It is common ground between counsel in the present case that the test is a mixture of the subjective and the objective. Logically, and as a matter of policy, it cannot be wholly subjective because this would engage liability in favour of a patient who was irrational or wildly eccentric yet genuine. The test whether “… in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk,” combines subjectivity with objectivity.”

6. Green J then identifies the difficulty in assessing the boundaries of the subjective assessment, see paragraph 55:

“What is less clear is as to the actual extent to which subjective factors relating to the actual patient are relevant since the greater degree of subjectivity inserted into the assessment the further one departs from the standard of the reasonable patient. Some characteristics are obvious: in particular that person’s actual medical condition which would include its severity. Other personal factors may be less self-evident: such as the patient’s tolerance for or stoicism towards pain, or the ability to manage pain. Other factors might be quite remote from the medical or physiological condition of the patient, such as the patient’s need to return to work, or the fact that the patient has suffered a recent event in his/ her life (such as bereavement or a divorce) which renders that person unusually fragile and (say) unwilling to take chances at that particular time.”

7. He then went on to look at paragraph 89 of Montgomery which states:

“Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages… the assessment is therefore fact sensitive, and sensitive also to the characteristics of the patient.”

8. Taking account of paragraph 90 of Montgomery, Green J emphasised that the actual communication of risks and treatment options must be assessed in the light of the following:

a. The communication/ dialogue between doctor and patient must be ‘adequate’. There must be ‘adequate time and space’ for there to have been a reasonable dialogue.
b. Communication must be ‘de-jargonised’.
c. The doctor’s duty is not fulfilled by bombarding the patient with technical information.
d. The routine demand of a signature on a consent form does not by itself mean anything in terms of consent.

9. He noted that in A v East Kent Hospitals [2005] EWHC 1038 Dingemans J had regarded a risk of chromosomal abnormality of 1 in 1000 as ‘theoretical, negligible or background’ and not material whereas a risk of 1% to 3% would have been material.

10. Dingeman J’s approach in A of 1 in 1000 being immaterial was endorsed by Jay J. in Tasmin v Barts [2015] EWHC 3315.

The judge’s criticisms of the pre-operative advice

11. The judge criticised the following aspects of the advice given in writing by Mr Johnston to the patient:

i. He had told her that there was at least a 90% chance of ridding her of leg pain; this was ‘substantially overestimated’ (the experts agreed the chances had been 85%);
ii. He had overstated her prospects of removing her back pain by suggesting that this was ‘not quite as likely to settle as her leg pain’ whereas a correct estimate would have been of the order of 50/50.
iii. He had understated the prospects of surgery making matters worse, suggesting the risks were ‘very small’, that the risk of nerve damage was ‘0.1%’ and that a 2% risk of leakage of spinal fluid would only mean a delayed discharge from hospital. The experts agreed a risk of deterioration from surgery of around 5%.

12. The judge noted that a fortnight before surgery there had been a 4-5 minute telephone conversation between the surgeon and patient but felt that this had not provided ‘adequate time and space’ to remedy any of the shortfalls in advice from the written letter.

13. Finally he noted that there was a conversation between surgeon and patient immediately prior to surgery. This was too late to remedy any defects in the consenting process:

“It is routine for a surgeon immediately prior to surgery to see the patient and to ensure that they remain wedded to the procedure. But this is neither the place nor the occasion for a surgeon for the first time to explain to a patient undergoing elective surgery the relevant risks and benefits. At this point, on the very cusp of the procedure itself, the surgeon is likely to be under considerable pressure of time and the patient is psychologically committed to going ahead. There is a mutual momentum toward surgery which is hard to halt. There is no ‘adequate time and space’ for a sensible dialogue to occur and for free choice to be exercised.”

14. Putting all of these factors together the judge concluded that had Mrs Thefaut been advised that there was only a 50/50 chance of improving her back pain and that there was a 5% chance of her condition worsening as a result of surgery or a complication, then she would either have declined surgery or postponed it to think longer about it pending a second opinion. He held that the high prospect of improving her leg pain would not have been sufficient to persuade her to go ahead despite the other factors. He held that if she had not gone ahead with surgery then subsequently she would either have decided against surgery long-term or would have undergone surgery on a different date and would probably have avoided the non-negligent complication. Her claim based on informed consent therefore succeeded with damages to be assessed.

The importance of this decision

15. This decision makes complete sense as an application of Montgomery but should be of real concern to surgeons, in particular those carrying out non-essential elective procedures such as discectomies. The logic of the decision is that Mrs Thefaut was entitled to choose whether or not to undergo the recommended procedure and she could not do so without detailed and accurate information both as to the risks and benefits of what was proposed but also the risks/ benefits of simply doing nothing i.e. conservative treatment.

16. Mr Johnston had provided his patient with a detailed account of the risks and benefits of surgery but had understated the risks and overstated the benefits. I suspect other practitioners will have seen many cases where there has been no real explanation of the risks, benefits or alternatives of the procedure at all. If a patient in such a case has suffered nerve damage then if they can persuade a judge that they would have deferred surgery had they been given the sort of information identified as being required by Green J then they will be in a very strong position on liability.

17. The doctors particularly at risk are those who see patients privately where there is a recommendation for surgery at one appointment and surgery shortly afterwards. If the surgeon cannot demonstrate ‘adequate time and space’ as part of the dialogue about surgery then they are on shaky ground.

18. Prior to Thefaut it was very difficult for a claimant to win a consent case where elective surgery had led to a non-negligent complication. A case might have been brought under Chester v Afshar but only where the patient had not been warned of the very risk that eventuated. Consent forms usually included a warning of paralysis or nerve damage so it was hard to bring a claimant within this narrow category of viable claims. Green J, following the lead of the Supreme Court in Montgomery, has just opened the door wide open for consent claims. I anticipate that there will be many claims which would not previously have passed the 50%+ prospects threshold which do now. Surgeons should urgently review their consenting processes.