High Court rules in favour of brain-injured patient in landmark consent and surgery planning case

High Court rules in favour of brain-injured patient in landmark consent and surgery planning case

David Bradshaw, Partner in the Clinical Negligence Team at Hay & Kilner, has secured a successful judgement for a brain-injured client, Mrs HQA, following a five-day High Court trial at the Royal Courts of Justice in London this June. The claim, brought against Newcastle upon Tyne Hospitals NHS Foundation Trust, follows nearly three years of preparation after the client first instructed David in 2022, shortly after she suffered her injury.

Mrs HQA, a young mother of three in her 20s with congenital heart disease, was admitted to the Freeman Hospital in Newcastle for elective heart surgery. Her claim arose from a tragic sequence of errors. While operating, the surgeon’s oscillating saw slipped, cutting through the sternum, a long flat bone located in the centre of the chest, and into the aorta, the main artery responsible for carrying oxygen-rich blood from the heart to the rest of the body, causing a severe hypoxic brain injury. Blood flow to the brain was disrupted, and further complications with cannulating the femoral arteries delayed the restoration of circulation, ultimately resulting in a catastrophic brain injury.

Given the severity of Mrs HQA’s injuries, she no longer has mental capacity. As a result, litigation was pursued on her behalf by her husband acting as her litigation friend.

The Claimant obtained expert evidence from a cardiothoracic surgeon, who raised concerns regarding the consenting procedure for the operation, the preparations made for surgery and the skill and care exercised during the surgery itself.

Liability was strongly contested by the Trust. In his Judgement, Mr Geraint Webb KC held the surgeon’s slip was a misjudgement of the depth of his blade and a recognised risk of the operation. However, the Claimant succeeded on the following key issues:

The Defendant failed to obtain Mrs HQA’s informed consent for her surgery
The Court strongly criticised the timing of the consent discussion, stating “it was unacceptable practice for the surgeon to see the patient for the first time on the day of the intended surgery to explain the risks and seek informed consent”.

Regarding informed consent, it was held that mitigating steps, such as pre-emptively exposing and preparing the groin vessels in case emergency bypass was required, should have been discussed with Mrs HQA as part of the consent procedure. The failure to explain that this option existed to reduce the risks associated with aortic injury was deemed negligent as “it is not for the surgeon to determine, for the Claimant, what the Claimant’s risk appetite should be.”

The Defendant did not adequately plan for the possibility of a catastrophic event, including failing to expose and prepare the groin vessels for emergency bypass.
The Court accepted the Claimant’s expert evidence that Mrs HQA’s aorta was sufficiently close to the rear of her sternum, at least in places. This meant in a re-do sternotomy, no surgeon could be confident of being able to open the sternum without causing injury to the enlarged aorta. Given this medium to high risk, the minimum level of precaution required was to expose and prepare the groin vessels in advance.

The Court found that 13 minutes of cerebral hypoxia would have been avoided had the operation been properly planned
It was concluded that but for the Defendant’s failure to properly prepare for the surgery, more than half of the time taken to establish cardiopulmonary bypass could have been saved.

This meaningful judgment brings immense relief to Mrs HQA and her family, following three years of overwhelming personal challenges. The severity of her injuries has affected the quality of life of the whole family. It is hoped that, with this successful outcome they can move forward, supported by the care and assistance they deserve and can now afford.

Mrs HQA’s husband and litigation friend commented: “We are relived and grateful that our lives are no longer on hold and we can begin planning for the future, knowing that HQA will now be given the opportunity to improve and heal through further therapy.”

Hay & Kilner instructed Howard Elgot and Megan Crowther of Parklane Plowden Chambers as Counsel to represent the Claimant in court.

David Bradshaw commented: “This is a profoundly distressing case involving life-altering injuries. My client has shown extraordinary resilience in the face of enormous personal challenges, and we are grateful that the Court has delivered justice for her and her family.”

This case is a testament to the commitment of David and the wider Clinical Negligence Team at Hay & Kilner to stand by our clients in complex, high-stakes litigation and to fight for the accountability they deserve.

The matter will now proceed to an assessment of damages hearing in due course. Damages are anticipated to exceed seven figures, reflecting the gravity of the injuries sustained.

You can read the full judgement in this case here.