Would you sue if your op went wrong? Patients awarded millions if they weren’t warned of dangers

Constant back pain for almost two years had left mother-of-three Tracy Hassell struggling to do the simplest things.

Getting up each morning was agony, and she was taking a cocktail of over-the-counter painkillers just to get through the day.

So when Tracy, from Uxbridge, West London, was offered what she understood to be a fairly straightforward surgical procedure to address her problem, the former head of year at a local secondary school didn’t hesitate.

‘I really thought it might solve all my back problems,’ says Tracy, 50, who is married to Tony, 51, a builder, ‘and I wasn’t worried about the operation because the surgeon had already been treating me for two years. I trusted him — he made it sound quite routine.’

But after surgery at Mount Vernon Hospital in West London in October 2011, Tracy woke to find she was unable to move the right side of her body, from her shoulder to her toes.

Her husband Tony had to fight back his tears as he broke the news that she was paralysed, possibly for good.

Tracy was devastated. ‘I was in my early 40s, had a career I loved and was a busy mum to three teenagers,’ she says. ‘Yet I was being told I could be permanently confined to a wheelchair.’

Tracy spent the next eight months in hospital undergoing treatment. ‘I’m not ashamed to say that, at one point, I was so low I begged a nurse to give me some pills to end it all,’ she recalls.

It turned out that while the procedure was straightforward, it did carry a small but significant risk of paralysis. Yet at no point had her surgeon raised this.

‘If it had been mentioned, there is no way I would have had the surgery,’ Tracy says. ‘I would have tried to find other non-surgical treatments, or I might have chosen just to put up with the pain.

‘Now I am permanently disabled, and although I have recovered some feeling, I’m never going to fully recover mobility.’

This failure to fully disclose the risk of paralysis was to be a crucial factor in a £4.4 million payment made to Tracy by the High Court in February 2018 to cover the lifetime cost of her care.

The court ruled that while Tracy had given her consent for the operation, it was not ‘informed consent’ because she was left unaware of the possibility she could be crippled.

The decision was based on an obscure but hugely significant 2015 legal landmark, called the Montgomery ruling, which has implications for thousands of patients affected by a treatment — whether surgical or non-surgical — that has gone wrong.

Nadine Montgomery was awarded £5.25 million after her son Sam was left brain damaged following his birth. Nadine, from Lanarkshire, Scotland, was of small stature and had type 1 diabetes, which increased her risk of having a larger-than-average baby and its shoulder getting stuck during a vaginal birth — a problem called dystocia.

But the doctor involved did not discuss the risk of shoulder dystocia for women with diabetes for fear that they might opt for a caesarean, which is not only more expensive but carries a risk of infection, bleeding and blood clots.

During labour, Sam’s shoulder did get stuck and, deprived of oxygen, he suffered brain damage.

Sixteen years later, the Supreme Court ruled that NHS Lanarkshire and medical staff were negligent in not sharing the decision-making process with Mrs Montgomery or allowing her to make an informed choice about having a caesarean.

This shifted the legal emphasis on what constitutes consent: previously, medical negligence cases were governed by the Bolam principle, which judged doctors’ clinical decision-making by the standards set by ‘a responsible body of medical opinion’.

In other words, if those clinical decisions were broadly in line with what most other doctors would do, then they were in the clear.

That still applies, but the new ruling has shifted the focus towards what was disclosed to the patient about the risks and benefits of the procedure before it took place, says Professor David Wald, from the Wolfson Institute of Preventive Medicine at Queen Mary University of London.

This means that things are now also determined by what ‘a reasonable body of patients’ would consider acceptable, he explains.

What’s more, the onus is now on the surgeon to provide written evidence such as a signed consent form that details all the risks.

Figures show that since the Montgomery ruling, there has been a surge in legal cases where doctors have been accused of failing to fully inform patients of the potential risks.

Data gathered by Professor Wald and his team show that since 2015, there has been a four-fold increase in such claims — from around ten a year to 40. This has increased annual NHS litigation costs for this type of legal case from £28 m to more than £60 m, according to the study, published in the Quarterly Journal of Medicine.

Under guidelines set out in 2016 by the Royal College of Surgeons, surgeons are urged to stop thinking that they ‘know best’, and before any operation to sit down with patients ‘for 40 minutes’ to discuss the risks and likely chances of success.

Professor Wald says the failure of surgeons to discuss the risks has been a long-term problem, but it’s been much more in the spotlight since the Montgomery ruling.

‘Such failures usually go unnoticed when outcomes are good but are scrutinised when complications arise,’ he told Good Health.

He is concerned that the increase in Montgomery-related cases has more to do with some lawyers exploiting the opportunity to win damages for their clients than a genuine decline in NHS consent-gathering procedures.

‘Hospitals do need to improve the way they inform patients before consent,’ he says. ‘But the Montgomery ruling lacks objectivity. It would serve everyone much better to have a system that made it clear exactly what does and does not need to be disclosed.’

He adds: ‘It’s highly likely that some lawyers are cashing in on the ruling because it makes it easier to win cases.’

He explains that if a patient, for example, suffered nerve damage as a result of surgery and was not told about that risk beforehand, the chances of winning a case are now much greater.

When Tracy first experienced lower back pain in 2009, she was able to manage it by taking an occasional paracetamol.

‘But after a few months, although I was still able to work and look after the kids, it was becoming more frequent and started to affect my quality of life,’ she says.

An MRI scan revealed she had spondylolisthesis, with one of her vertebra slipping out of position and pressing on nerves in her spinal cord. Tracy was referred to Shaun Ridgeway, a spinal orthopaedic surgeon at Hillingdon Hospital, and over the following two years she underwent a series of operations to remove bone.

Tracy then developed further unrelated problems in another vertebra, which was rapidly degenerating, causing more pain.

Mr Ridgeway recommended a cervical discectomy — surgery to cut out the worn-out disc and replace it with a titanium one.

The procedure is fairly common and is carried out through the throat as this makes it easier to reach damaged discs without damaging the spinal cord.

Tracy recalls: ‘I remember laughing when he told me I might suffer a bit of a hoarse voice for a few weeks and not be able to chat quite as much as I do. There was no mention of the risk of paralysis.’

Research suggests severe nerve injury, enough to cause temporary or permanent paralysis, affects no more than 0.3 per cent of patients having this surgery.

While the High Court judge said Mr Ridgeway had used reasonable care and skill during the operation, he ‘was not a good communicator about the risks … I find that Mrs Hassell did not give informed consent to the operation’.

Tracy’s lawyer Olive Lewin, of Leigh Day, says the Montgomery ruling should ensure ‘all patients have full knowledge of the risks’.

Nine years on, Tracy has regained some mobility. ‘I can now walk short distances with a brace on my leg.’ She can also now feed herself and has control over bowel and bladder movement.

In a statement to Good Health, Hillingdon Hospitals NHS Foundation Trust said Mr Ridgeway is no longer employed by the trust.

It added: ‘Our consent policy fully references Montgomery, including stating the risks of treatment, the right to refuse treatment and alternative options including non-operative (conservative) care and no treatment.’

Mr Ridgeway did not respond to requests for comment.