England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, LEEDS DISTRICT REGISTRY
HIS HONOUR JUDGE LANGAN QC

		Royal Courts of Justice Strand London, WC2
		27 April 2006

1. LORD JUSTICE GAGE: This is an application for permission to appeal by a claimant SEM ("the applicant"). She seeks permission to appeal an order of HHJ Langan QC dated 13 September 2005. By his order the judge dismissed the applicant's claim for clinical negligence. He also refused permission to appeal. The application for permission to appeal is renewed orally before me, and is made on the applicant's behalf by her husband.

2. On 22 July 1999 the applicant underwent a surgical procedure carried out by a consultant, Miss Fishwick. The surgical procedure included a vaginal hysterectomy and a McCall's culdoplasty and anterior and posterior repair of the vaginal walls. The McCall's procedure involves the tying of the utero-sacral ligaments into the vault of the vagina using non-absorbable sutures. After the procedure the applicant experienced further pain. Attempts were made to resolve this with further operations, but sadly they were unsuccessful and the applicant continues to suffer pain. As I understand it, she is now confined to her room and for the most part is in bed. She complains in her proceedings about the lack of pre-operative advice given to her by Miss Fishwick.

3. The main issue at the trial was an issue of causation. It was common ground that the applicant had not been advised by Miss Fishwick about alternative non-surgical and surgical treatments. It was accepted by the respondent that Miss Fishwick's failure to give such advice was negligent. Therefore, as I have said, the main issue at the hearing was causation, that is to say the appropriateness of alternatives and what the consequences of that advice would have been if it had been given to the applicant.

4. The judge noted in considering the issues in the case that the applicant's psychiatric condition was also relevant. He said that she suffers from a somatoform disorder which, put very simply, is found where a patient has physical complaints which are not fully explained by a general medication. I should point out, since it features in the grounds of appeal and in Mr M's submissions before me today, that as a preface to this finding the judge set out the medical records that he attributed to the applicant. These are set out at paragraph 13.

5. He went on, at paragraph 14, to state the relevance of those records in these terms:

"The analysis of the material which underlies this summary, together with interviews with Mrs M, have led both the psychiatric experts to the conclusion that Mrs M suffers from a somatoform disorder. The common feature of a somatoform disorder 'is the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition, by the direct effects of a substance, or by another mental disorder (e.g., Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational, or other areas of functioning. In contrast to Factitious Disorders and Malingering, the physical symptoms are not intentional (i.e., under voluntary control). Somatoform Disorders differ from Psychological Disorders Affecting Medical Condition in that there is no diagnosable medical condition to fully account for the physical symptoms.'"

6. The paragraph continues, in the judgment:

"In their oral evidence the doctors mentioned a number of features of somatoform disorders: 'illness behaviour'; exaggeration of pain or other perceived physical symptoms; poor reaction to surgery or other medical intervention; adoption of the role of an invalid. Dr Wood said that it was typical of somatisation disorder, which is the most serious form of somatoform disorder, that 'a person is passed from one specialist to the next.' Dr Wood's diagnosis of Mrs M is that she suffers from somatisation disorder. Dr Bradbury places Mrs M in the less serious category of undifferentiated somatoform disorder, but even she described this as a case in which she had found 'gross psychopathology.' Both doctors agreed that it would not be profitable to pursue the question of precisely how Mrs M's disorder should be classified".

7. The judge then went on to outline the treatment and the after-effects of the treatment carried out by Miss Fishwick. These are set out in paragraph 16 to 26 of the judgment. In summary, the applicant first noticed a lump in the opening of her vagina in 1999. After visiting her general practitioner the applicant was referred to Miss Fishwick. The first consultation took place on 8 March 1999 and as a result of this a pelvic scan was arranged. The next consultation was on 17 March 1999 and, following a referral by Miss Fishwick, the applicant was seen by Mr Lyndon on 22 April 1999. Miss Fishwick saw the applicant for further consultations on 26 April 1999 and 5 May 1999. The hysterectomy was carried out on 22 July 1999. As I have already said, the applicant unfortunately continued to suffer constant pain and the hysterectomy did nothing to resolve this. The applicant was referred by Miss Fishwick to Mr Trehan. The applicant agreed that she should have her adhesions dealt with by a laparotomy. However, she then decided to go back to Miss Fishwick as her consultant, and adhesiolysis was performed by Miss Fishwick on 12 July 2000. The applicant continued to experience pain. In a meeting on 26 September 2001 she was offered three options which were firstly to do nothing, secondly an adhesiolysis to be carried out by Mr Trehan, or a referral to another consultant at another hospital. The applicant opted for surgery, which was carried out on 1 October 2001. There was a review on 10 May 2002 and it was noted that the applicant had a very clean pelvis.

8. As I have said, the central issue concerned the question of causation. The judge identified that issue as:

"What advice should and would Miss Fishwick have given? How would Mrs M have responded?"

9. Two experts were called on this matter; for the applicant Mr Lynch, and for the respondent Mr Gupta. Where their evidence differed the judge preferred the evidence of the expert called by the respondent, namely Mr Gupta. However, on three matters the experts were agreed. They were agreed that the applicant should have been offered a choice of firstly doing nothing apart from reassurance and physiotherapy, secondly the use of medical devices, and thirdly surgical alternatives to a vaginal hysterectomy with McCall's procedure. The judge found, as I say, having preferred Mr Gupta's evidence, as follows, and his findings are set out in his judgment principally on these issues at paragraphs 50 to 53, to which I will now refer. They read:

"50. I referred earlier to advice which Miss Fishwick should and would have given. In my judgment, within the parameters of the range of options which she was obliged to lay before her patient, she would with some emphasis have recommended a vaginal hysterectomy with McCall's procedure. To suppose that Miss Fishwick would have advised in any other way appears to me to be unrealistic. The McCall's operation was one in which she had been recently trained and which she had, she says, performed on some fifty occasions during her year in Louisiana. The fact that it was the procedure which she in fact adopted, albeit without adequate pre-operative counselling, speaks for itself.

"51. I now have to consider what, assuming the giving of proper advice by Miss Fishwick along the lines envisaged in the last section of this judgment, the response of Mrs M to that advice would have been.

"52. Mrs M's case, as presented by Mr Hartley in his closing submissions, it appears to me to come to little more than an invitation to the court to accept the assertion made by his client in evidence. This, as I have already mentioned, was to the effect that, if given a choice, she would have chosen the least invasive form of intervention. She backed up this assertion by stating that she regarded a hysterectomy as 'an old woman's operation' and (this was said for the first time in her oral evidence) that she would not have wanted to deprive herself of the opportunity of having another child.

"53. I find myself wholly unable to accept this evidence. I have come to the conclusion that Mrs M would at the consultation of 5 May 1999, if given a choice, have elected for precisely the surgery which was in fact performed some weeks later. I cited in paragraph [40] a passage from the judgment of Hutchison J [that is Mr Justice Hutchinson], in Smith v Barking, Havering and Bedford Health Authority. The learned judge thought it right in the ordinary case to give weight to what he called 'the objective assessment', attaching importance to the patient's post-operative view only if there were 'extraneous or additional features to substantiate it.' In this case, as I see it, there are indeed some highly unusual extraneous or additional features, but they weigh heavily against, rather than in favour of, the post-operative view".

10. The judge went on later, at paragraph 55, to say the following:

"It is when one comes to Mrs M's psychiatric condition that, in my judgment, the case of causation is shipwrecked. The following passage appears in the joint report of Dr Bradbury and Dr Wood: 'We agree that [Mrs M] would have been highly dissatisfied with any treatment intervention other than surgery, on the basis that individuals with the tendency towards illness behaviour exhibited by Mrs M tend to seek out more dramatic interventions [rather] than more conservative ones. Given that her symptoms were at least partly psychogenic in origin, conservative intervention was most unlikely to modify them in any way, thus if the surgery had not taken place in July, it would have occurred a few month[s] later, after a more prolonged period of continuing complaint'.

"There are small shades of difference in the views taken by Dr Bradbury and Dr Wood. They come to no more than this: whether Mrs M's account of her immediately pre-operative mental state (which is to be found in paragraph [11] above) is accurate (as Dr Bradbury appears to accept) or whether from at least early 1999 the somatoform disorder was again rearing its head (which is Dr Wood's view). Both doctors agree that the disorder was well in place by the summer of 1999. It is, I think, sufficient for me to say that, from the general practitioner and other records which I have seen, it looks more probable than not that the period during which the somatoform disorder was quiescent had come to an end by early 1999".

11. It is against that background that Mr M this morning has laid great emphasis upon what he submits are inaccuracies in the medical records. He has placed before the court a long list of entries which he says in some respects are inaccurate. For instance – and I take two, very shortly – entry 26 February 1990, GP record 150 actually says "pain under breast". Entry 13 November 1990, GP record 151, there is no entry on the GP record 151 for 13 November 1990. I have not attempted to go through, in this judgment, all the inaccuracies that are said to have occurred. Some of them are in greater length than the ones to which I have already referred. I have those well in mind.

12. The problem, as it seems to me, in relation to this submission is that the judge was faced with an agreed report by Dr Bradbury, the applicant's psychiatrist, and Dr Wood; and as the judge said in the passage of his judgment to which I have just referred, the doctors were agreed that the disorder was well in place by the summer of 1999. It was against that background, and that agreement, that each took the view that they expressed jointly about the effect of the somatoform disorder on the decision which Mrs M had to make. That was, as I have said, an agreed conclusion.

13. Mr M, this morning, and in the grounds of appeal, challenges the two psychiatrists. In particular he submits that Dr Wood was biased against his wife and that Dr Bradbury, the applicant's doctor, was herself partial, she having been influenced by reading Dr Wood's report first. The difficulty in this submission is that, it being an agreed report and the only agreed report before the judge on that issue, it really was quite impossible for the judge to do other than to find in accordance with the agreed evidence. If the applicant had disagreed with this, that is a matter which should have been taken up with her legal advisers and placed fairly before the judge. It was not.

14. There are other grounds of appeal, and the first is one which leads directly on from the matter to which I have just referred. It is that the solicitors who acted for the applicant are "felt to be biased in favour of the respondent". That ground is wholly unparticularised and I can detect in the papers before me no evidence of it. In any event, it is a matter which in my judgment cannot amount to an error of law so far as the judge is concerned. If it has force in it, it is a matter which must be taken up with the solicitors.

15. The first ground set out as the first ground in the grounds of appeal is the one to which I have already referred, namely the inaccuracies in the medical records. The second also is one to which I have already referred, namely that the psychological evidence was prejudiced in favour of the respondent. I have already said that the judge was bound to rely upon the agreed psychiatric evidence, and I have set out his conclusions, which are contained in paragraph 55 of the judgment. The third ground similarly repeats the complaint that the hospital entries used in the judgment were inaccurate and incomplete. The next ground, ground 4, complains about gynaecological evidence. It reads:

"Gynaecological evidence differs from that of the defendant, i.e. number of sutures used.?"

Put in that short way, with a question mark, it is difficult to understand what the applicant is getting at, but I assume it to be – Mr M has placed the matter before me today – a complaint that the applicant was not properly warned about the effect of the sutures that were put in by Miss Fishwick. That, in my judgment, is really covered by the judge's finding of fact that, whatever might be the position due to her condition, the applicant would in any event have opted for surgical treatment in the form which was carried out.

16. The next ground is said to be that the hospital consultant who whistleblew and "told us what was wrong" was not called as a witness, even though he operated on the claimant. There again, that is really a matter which the applicant should have taken up with her solicitors and with which they should have dealt. If there is a complaint to be made, it was to be made about the solicitors. Similarly the seventh ground, which states that video and photographic evidence has disappeared. It is impossible to tell from that ground as it is set out what it was that caused the disappearance of the video and photographic evidence, nor its relevance. Once again, it is a matter which should have been taken up with the applicant's legal advisors.

17. Eighthly:

"Letter from the defendant admitting delays in treatment, diagnosis and apologising for pain and stress caused, was not used".

Once again that is unparticularised, but is a matter which should have been dealt with, if at all, with the applicant's solicitors at the time. As indeed is the final matter, namely number 9:

"The right to examine witnesses against her not fully given and not allowed to have witnesses for her give evidence".

All these are matters to do with the conduct of the proceedings by her solicitors. If the applicant has a complaint in respect of that, it must be taken up by her solicitors.

18. Sympathetic as one might be – and anyone would be for the applicant in the condition in which she now finds herself – I have to decide this question on the issue as to whether or not there is demonstrated in the judgment and on the grounds of appeal an error of law or a finding of fact which is plainly wrong. Having considered the matter with great care and read the judgment carefully, I have reached the conclusion that no such error of law or error of fact is demonstrated in the judgment.

19. Accordingly I conclude that the grounds of appeal have no reasonable prospect of success and this application must be rejected.

Order: Application refused.