In the recent High Court Judgment of Hassell v Hillingdon Hospitals NHS Foundation Trust  EWHC 164 QB there is an emphasis of the need for careful consideration of factual witness evidence, even in the most technical of medical negligence cases.
The case failed on the allegation that the surgery had been performed negligently but succeeded on the inadequate warnings the Claimant had received about the risks of the operation.
At 41 years old Mrs Hassell suffered an injury to her spinal cord leaving her with permanent disability in the form of weakness in all 4 limbs. She recovered damages of £4.4 million. The judge found no negligence as to the standard of surgery, not could he reach a conclusion as to the cause of the spinal injury , but he found that the law requires a doctor 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 as to what is “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 be, reasonably aware that the particular patient would be likely to attach significance to it.
In the case of Mrs Hassell, on the basis of the factual evidence given, she was not told of the risk of cord damage beforehand, and only on the day when her mind was not engaged on the consent form. The judge found that with proper advice Mrs Hassell would have elected for conservative treatment and not surgery.
Whether or not less serious cases will, in time, be decided in the same way as this one remains to be seen, in particular where there is no identifiably negligent act or omission relating to the procedure itself. However, it does demonstrate one or two matters which hitherto have not attracted sufficient attention:
- Warnings on the day of surgery are risky;
- Consent forms are only part of the overall informed consent process;
- Whether the risk is material or advice has been adequate is not the remit of the medical expert, but for the court;
- Unusually, informed consent is an area of medical negligence litigation where factual witness evidence is crucial, most cases turning on the medical records and independent expert opinion.