High Court Judgment Template - 1 Chancery Lane



Case No: D60YJ322IN THE COUNTY COURT AT TAUNTONSITTING AT BRISTOLBristol Civil Justice Centre2 Redcliff StreetBristolBefore : HHJ RALTON- - - - - - - - - - - - - - - - - - - - -Between :JAMES KILKENNYClaimant- and -GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUSTDefendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Grice (instructed by Harris Fowler) for the ClaimantMs Johnson (instructed by DAC Beachcroft) for the DefendantHearing dates: 30 & 31 JULY 2019- - - - - - - - - - - - - - - - - - - - -JUDGMENTHanded down on 16th August 2019HHJ ALEX RALTON :INTRODUCTIONOn 11th April 2017 Mr James Kilkenny issued a claim for damages in clinical negligence against the Gloucestershire Hospitals NHS Foundation Trust, “the Trust” for injury and loss arising out of the Gloucester Royal Hospital’s failure to timeously advise him of the option to undergo surgery to fix his left shoulder which he fractured on 1st April 2014. It is common ground that there were two treatment options namely:Surgery by way of metalwork to re-attach the broken bits of bone to each otherNon-surgical by way of slingboth of which would have been followed by increasing mobilisation and physiotherapy.It was Mr Kilkenny’s case that timeous advice and surgical intervention would have resulted in a swifter and better recovery; see paragraph 6 of his particulars of claim. It is now his case that such intervention would have resulted in a swifter but not better recovery given the agreement between medical experts that eventual outcome has not been affected.The Trust accepts that Mr Kilkenny was not advised about surgical intervention until it was too late but it contends that in any event:Surgery would have been offered (although it’s witness of fact, Mr Engelke, said otherwise);Mr Kilkenny has not proved that he would have consented to surgery;Surgery would not have resulted in a swifter recovery.All heads of loss are in dispute.To resolve these issues the claim was allocated to the multi-track, case managed and came on for trial before myself on 30th and 31st July 2019. Both parties are represented by counsel and I am grateful for the assistance given to me by:Mr Grice for the Claimant;Ms Johnson for the Defendant.I heard oral evidence from:Mr James Kilkenny;The Claimant’s expert Consultant Orthopaedic Surgeon Mr Philip Fagg;Mr Daniel Engelke, Consultant Trauma and Orthopaedic Surgeon at Gloucester Royal Hospital;The Defendant’s expert Consultant Orthopaedic Surgeon Mr David Limb.References to numbers in square brackets cross refer to the trial bundle. Thus [1/2/3] would mean bundle 1 page 2 paragraph 3.THE WITNESS EVIDENCENo part of Mr Kilkenny’s narrative account was contradicted by any other evidence and the cross examination mainly related to his claim for lost income.Whilst I do consider that Mr Kilkenny’s claim for lost income could have been better prepared I found him to be a straightforward and honest witness and I accept all that he told me by way of narrative.Mr Engelke was put forward as a witness of fact with respect to the clinical advice that would have been given and the clinical decisions that would have been made but for reasons that I will provide later I do not accept that a clinical decision would have been made to not offer surgery (it was the Trust’s case that surgery would have been offered)..Both Mr Fagg and Mr Limb are eminent in their fields. Mr Fagg has longer experience and Mr Limb appears to be a little more specialised. Mr Limb is still in practice whereas Mr Fagg is not. However, it is not the experts’ curriculum vitaes that cause me to prefer the opinion of one over the other; rather it was the quality and content of their evidence which I address below..FACTSMr James Kilkenny was born on 12th October 1952 and is aged 66 at the date of this judgment; he is a self-employed window cleaner. He relies mainly on his own labour but he employs up to 3 people on a casual basis. Mr Kilkenny’s only relevant pre-accident existing medical condition is diabetes.Mr Kilkenny has not disclosed any business accounts as such. The very limited disclosure is found at [1/140]. I accept that a self-employed person’s accounts may be no more than the information and figures provided in the tax returns but no complete tax returns have been disclosed. Presumably the “income from self-employment” is the net profit made by Mr Kilkenny and I note that the family qualified for tax credits.On 1st April 2014, in the course of cleaning windows, Mr Kilkenny fell from his ladder and suffered an injury to his left shoulder. He attended the Accident and Emergency department at Gloucestershire Royal Hospital that day where he was examined by Dr Arain and an x-ray was ordered and read by Dr Arain as showing a:“fracture deltoid tuberosity” [2/8].Mr Kilkenny was given an appointment in the fracture clinic on 3rd April whereupon he told (presumably Dr Arain) that he was due to go to the USA on holiday that day for two weeks and asked whether it was alright to go given the injury. The x-rays were seen by Mr Juanroyee, an Orthopaedic Specialist Registrar (according to the defence) who concluded “patient can be seen in 2 weeks” [2/7]. Mr Kilkenny recalls being advised that his was ‘not a bad break’ and that provided he was insured and not driving he could go on holiday and attend the fracture clinic on 22nd April 2014; he was not advised of any risk of delaying attendance at the fracture clinic. Mr Kilkenny tells me, and I accept, that had he been told that he should keep the appointment on 3rd April he would have cancelled his holiday.It is common ground that:Mr Kilkenny in fact suffered a valgus impacted fracture of the proximal humerus;an Accident and Emergency clinician would not be expected to recognise the fracture as a valgus impacted fracture;A reasonable body of senior orthopaedic surgeons would have correctly diagnosed the fracture;see the experts’ joint statement [1/105]. Therefore I find that the correct diagnosis should have been made on 1st April 2019 by Mr Juanroyee or on 3rd April 2019 had Mr Kilkenny attended the fracture clinic on that day. It follows that competent advice on the treatment options should have been given on 1st or 3rd April 2019; the difference of a couple of days matters not in this case.Mr Kilkenny went on holiday and thereafter went to the fracture clinic on 22nd April 2014 when he saw Dr Bhagawati, Trust Doctor in Orthopaedics. Dr Bhagawati diagnosed:“displaced fracture left greater tuberosity of humerus”and after discussing the case with Mr Aylott for further management advised that as the fracture was already more than three weeks old that physiotherapy should commence [2/9]. Pre-assessment took place on 24th April [2/99] and it seems from the records that thereafter Mr Kilkenny carried out the advised exercises [2/101].Mr Kilkenny recalls (and I accept) that Dr Bhagawati told him that he should have had an operation and that it was now too late for an operation. This is consistent with Dr Bhagawati’s letter of 22nd April [2/9] albeit it is common ground between the experts that the fracture as (wrongly) described by Dr Bhagawati would be treated conservatively and not surgically [1/106] in the absence of significant or increasing displacement of the fragment.Mr Kilkenny started the physiotherapy and continued to be seen in fracture clinics with on-going pain such that on 19th August 2014 Dr Bhagwati referred Mr Kilkenny to Mr Daniel Engelke, Consultant Orthopaedic Surgeon who saw him on 29th August 2014. Mr Kilkenny presented with:“ongoing significant problems in his left shoulder”Mr Engelke diagnosed:“Post complex proximal humerus fracture with significantly displaced greater tuberosity fragment, now healed in significant deformity of humeral head and consecutive subacromial impingement”Mr Engelke recorded:“He had an accident on the 1.4.2014 while working as a window cleaner and fell onto his left shoulder. Two days later he went to the US as he was informed by A&E that wouldn’t be a problem, coming back 3 weeks later. At that time he already had a significantly displaced greater tuberosity and the chance for an early fixation was deemed quite low.” [2/17].Further to a case conference on 8th September 2014 Mr Engelke provided a diagnosis of :“subacromial impingement syndrome and frozen shoulder after proximal humerus fracture with displaced greater tuberosity fracture”[2/18] and an arthroscopy with subacromial decompression was recommended. Mr Kilkenny consented to that treatment which took place in October 2014. No mechanical impingement was found. Mr Kilkenny’s left shoulder problems continued and an injection into the joint was given in December 2014.Mr Kilkenny said that the injection helped by improving mobility and reducing pain and when reviewed on 30th January 2015 he was discharged. In the meantime Mr Kilkenny did not carry out any window cleaning until August 2014 although his business continued by use of casual labour. From August 2014 Mr Kilkenny said he worked odd days because of financial pressures.THE SHOULDER JOINT & MEDICAL KNOWLEDGEAt its simplest the joint is in the form of ball and socket; the head of the arm bone (the humerus) is the ‘ball’ and the shoulder blade (the scapula) is the socket; the ball should aim at the glenoid. This case concerns the ‘ball’.The relevant part of the bone is clinically regarded as 4 segments usefully seen in the diagram at [3/2] and I reproduce it in this judgment:The shaft (1) rises up to meet the greater tuberosity and the lesser tuberosity (2) and (3). To the side and top of the lesser tuberosity is the head (4) which lies deepest in the socket. The dotted lines:“represent lines of epiphyseal scar where the four segments that ossify separately fuse at skeletal maturity … fractures tend to generally occur along lines of these epiphyseal scars in the proximal humerus” [3/2]I am told that the most common form of classification of closed proximal humeral fractures is that of ‘Neer’. A segment is a ‘part’ fracture if:The displacement (the gap between bits of bone caused by the fracture) exceeds 1cm (so 10mm) orThe displacement seen as angulation is more than 45 degreesIf the fracture has not resulted in sufficient displacement it is referred to as an undisplaced or minimally displaced fracture under Neer or by others as a ‘one part fracture’. There appears to be common ground that the 2, 3 or 4 part fracture corresponds with the number of segments involved and Neer’s displacement criteria.I understand that there was very little literature upon the merit or otherwise of surgery for such fractures as of April 2014. I do not have but all concerned are aware and told me about the Cochrane review from 2006 which concluded that it had insufficient evidence to suggest whether surgery or conservative treatment was more appropriate or to identify optimal timing of physiotherapy.The report further to the Proximal Fracture of the Humerus Evaluation by Randomization (PROFHER) was produced in March 2015 (so nearly a year after Mr Kilkenny’s accident) and its objective was :“To evaluate the clinical effectiveness of surgical vs non-surgical treatment for adults with displaced fractures of the proximal humerus involving the surgical neck”and the conclusion was:“Among patients with displaced proximal humeral fractures involving the surgical neck, there was no significant difference between surgical treatment compared with nonsurgical treatment in patient-reported clinical outcomes over 2 years following fracture occurrence. These results do not support the trend of increased surgery for patients with displaced fractures of the proximal humerus”The researchers needed to look at the risk and benefits posed by surgical and non-surgical treatment. There is a table at [3/9]. Thus surgery engages discrete risks of its own such as infection and metalwork failure and likewise conservative treatment has a discrete risk of non-union. Both forms of treatment gave rise to an almost equal number of post traumatic stiffness problems but the table does suggest that surgery carries greater risks.The “Evidence-based algorithm to treat patients with proximal humerus fractures – a prospective study with early clinical and overall performance results” from the Department of Orthopaedic Surgery and Traumatology, St Gallen, Switzerland was published in the Journal of Shoulder and Elbow Surgery in 2019 and was handed in at trial. Insofar as the algorithm comprises a treatment guideline for proximal humerus fractures it can have no application to the decisions in April 2014; it was relied on by Ms Johnson in support of the proposition that for certain types of fracture there was no advantage to surgical intervention as opposed to conservative treatment and that application of the algorithm to Mr Kilkenny would have resulted in conservative treatment. That might be right but I do not find that the study or the algorithm it considers helps me to resolve the issues in this case.HOW SHOULD MR KILKENNY’S FRACTURE HAVE BEEN CLASSIFIED?As noted earlier, it is common ground that Mr Kilkenny sustained a valgus impacted fracture of the left proximal humerus. So the humeral head had been pushed down onto the shaft and the greater tuberosity was pushed outwards.The degree of lateral displacement of the greater tuberosity in terms of distance is put by Mr Limb in his report at 2 to 3mm and in oral evidence by Mr Fagg at 3 to 4mm; the difference in measurement between them is insignificant and comes under the 10mm displacement required by Neer although Mr Fagg regarded the displacement as significant.There was a considerable difference of opinion on the amount of angulation. Initially in oral evidence before being given copies of the x-rays Mr Fagg said that there had been considerable angulation of over 45 degrees; he created a visual picture as follows:“the top of the shaft is looking at the sky”As Mr Fagg and Mr Limb disagreed upon the interpretation of the x-rays it became convenient if not downright essential for the x-rays to be available at trial and the Defendant’s solicitors were able to supply copies at short notice. Those x-rays clearly show the valgus impacted fracture and provide a little help with respect to angulation. Ms Johnson sought to daw medical lines on the third image with which to show angulation which she put to Mr Fagg as being rather less than 45 degrees. Mr Fagg pointed out (and I accept) that measuring off the x-ray rather depended on the degree of rotation of the subject – how perfectly was Mr Kilkenny positioned before the x-ray was taken. Nonetheless Mr Fagg conceded that the angulation was not 45 degrees and his “best guess” was that it was 15 to 35 degrees which is less than the Neer criteria.There continued to be a significant dispute between Mr Fagg and Mr Limb upon classification of the fracture and thus the consequential support or otherwise for surgery. Mr Fagg says that the fracture is “four part” (within the meaning of the Neer guidelines) and Mr Limb says it is “one part” [1/105]. The distinction is important for the purpose of options it being common ground that normally a one part fracture is treated conservatively and a four part fracture with surgery.In his oral evidence Mr Fagg said that it was a four part fracture because:The humeral head was fracturedThe greater tuberosity was fractured and displacedThere was some other involvement by way of fracture of the lesser tuberosityThere was a fracture of the shaftWhen challenged to provide evidence that the lesser tuberosity had been fractured Mr Fagg altered his evidence to say that it was “involved” and when asked to provide evidence of involvement he said that that was his impression from his experience. Mr Fagg also appeared to part company from the Neer classification in that he was using his own classification of four part fracture.In rather stark contrast Mr Limb remained consistent in his classification of the fracture. His opinion was not undermined unlike that of Mr Fagg.That draws me to the finding that I prefer Mr Limb’s evidence on this issue. It was a one part fracture within Neer terminology. For completeness I do not think that the use of the word “significant” helps to further classify the fracture.WHAT TREATMENT SHOULD HAVE BEEN OFFERED Mr Fagg and Mr Limb agree that:“a discussion should have been had with the patient as to the various options of treatment, which include conservative treatment, minimally invasive treatment or internal fixation with plate and screws” [1/108].WHAT TREATMENT WOULD HAVE BEEN OFFEREDI accept that discussion of surgery does not mean surgery would have been offered. However, as I pointed out to Ms Johnson, it would be odd to have a serious discussion about a strategy that was never going to be offered.I note that in the joint report Mr Limb said:“Mr Limb believes that both operative and non-operative treatment would have been offered with advice that for valgus impacted fractures there was (at that time) no evidence that the outcome could have been improved by surgery” [1/107/5cii]Mr Fagg in his report said:“I believe that no competent shoulder surgeon would treat this conservatively” [1/89/11x]but in the joint report said that on the balance of probability surgery would have been offered as the clinician’s preferred course We know that it was Dr Bhagawati who first mentioned surgery to Mr Kilkenny. Mr Engelke told me, and I accept that Dr Bhagawati did not have sufficient standing to offer an operation.In his first statement Mr Engelke says:“Mr Kilkenny would have been given the potential options for surgical and non-surgical treatment. In the case of an operation, he would have been informed about potential risks of infection, wound healing problems, damage to muscles and tendons with following stiffness, non-union and failure of the metalwork, potential re-operation, potential stiffness and avascular necrosisWith the knowledge of these potential risks and their overall likeliness of a similar outcome with conservative treatment according to the PROPHER trial, it is more likely than not that we would have recommended conservative treatment and would have advised for a follow up x-ray in due course” [2/36/6&7].As Mr Grice pointed out, the choice of options was Mr Kilkenny’s, not Mr Engelke’s. Further, Mr Engelke’s letter to Mr Harcourt of 29th August 2014 [2/17] was put to Mr Engelke and his use in particular of the words:“significantly displaced greater tuberosity”Which would have supported clear clinical advice of the merit of early surgical intervention rather than conservative treatment. In oral evidence Mr Engelke said (somewhat bizarrely in my judgment) that he deliberately exaggerated because of his frustration at having a patient referred to him four and a half months after the fracture. He went on to say that he probably exaggerated the displacement because the previous recorded description of the fracture fell short.In any event Mr Engelke’s first statement relied on the PROPHER trial which post-dated the events we are concerned about. Mr Engelke sought to correct this in his second statement but took no opportunity in that statement to elaborate on his reasoning remaining the same blaming lack of time.Having seen or heard as the case may be all of the evidence, I find that surgery would have been offered. It is difficult to identify whether it would have been recommended over conservative treatment given the lack of evidence of success or failure rates but I do know that the reasoning behind the PROPHER trial was that surgery was becoming fashionable and overall I find that a treating clinician would have slightly leaned in favour of surgery; or , in Mr Limb’s words, Mr Kilkenny would have been “steered” towards surgery in some hospitals.WOULD MR KILKENNY HAVE CONSENTED TO SURGICAL INTERVENTION?As Mr Fagg observes in the joint report:“in view of the Claimant’s age and occupation, on the balance of probability, treating surgeon would have offered internal fixation, but it will be a matter of evidence as to whether or not the Claimant would have opted for surgery or continued conservative treatment”[3/107/5cii]To make the decision the Claimant would no doubt weigh up the pros and cons of each option. No one has suggested that either one of the options was so obviously meritorious that no reasonable adult male aged (then) 61 would have turned it down.Rather surprisingly no evidence at all was led that Mr Kilkenny would have chosen and thus consented to surgery. Of course he was not presented with any risk/ benefit analysis at the time but I do not understand why there was no evidence on what his choice would have been. The only potential benefit of surgery was swifter (not better) recovery whilst the risks were serious e.g. infection. Mr Fagg insisted that surgery was appropriate because Mr Kilkenny was otherwise a young working man who needed his shoulder to work as soon as possible so he could pay the mortgage but this makes all manner of assumptions upon wealth, liquidity and the structure of Mr Kilkenny’s business which caused him to rely on casual labour or sub-contractors. Mr Grice invited me to infer that Mr Kilkenny would have consented to surgery but the only evidence that I have to support an inference would be Mr Kilkenny’s later consent to arthroscopy given when his shoulder had not made the recovery that all concerned expected him to make with non-surgical treatment. I have no idea what Mr Kilkenny’s view of the risks of surgery was.In the circumstances where the decision whether or not to undergo surgery would be finely balanced I cannot make a finding that on the balance of probability Mr Kilkenny would have elected surgery.WOULD THE RECOVERY HAVE BEEN ANY FASTER?Mr Fagg tells me that by using surgery to hold the fragments together physiotherapy and mobilisation would have started sooner and so the recovery would have been quicker.In this case Mr Kilkenny’s recovery was made protracted by a frozen shoulder. Mr Limb says that the fracture injury caused the frozen shoulder, not the treatment given or not given and that early physiotherapy might stop post traumatic stiffness but would not have stopped the onset of frozen shoulder. In his report Mr Fagg says internal fixation and earlier mobilisation would on the balance of probability prevented the frozen shoulder for occurring. Mr Limb has pointed out that as a diabetic Mr Kilkenny was at increased risk of suffering a frozen shoulder which is a condition that can arise without apparent cause. Mr Fagg did not deal with this in his reports but agreed in the joint report that Mr Kilkenny was at increased risk.In oral evidence Mr Fagg told me that mobilisation by physiotherapy would start almost immediately after the operation; when pressed to give a time period he said within 3 weeks from (I think) 1st April 2014. In fact, as Ms Johnson pointed out to Mr Fagg, physiotherapy started a little over 3 weeks post-accident. Mr Fagg thence continued to justify his assertion that a swifter recovery would be made on the basis of his clinical experience. However, it was clear to me that there would have been a period of immobilisation even with surgery and if immobilisation is to blame for the frozen shoulder it cannot be said that the same would have been avoided had there been surgery.I have not been able to find any evidence to support Mr Fagg’s assertions. In particular, the PROPHER study does not show that he was right nor the algorithm to which I have referred.I find that there was a chance that surgery would have resulted in a swifter recovery but the evidence does not support a finding made on the balance of probability and it is common ground between counsel that loss of a chance does not sound in damages in this sort of case.HEMI-ARTHROPLASTYIn his first report Mr Fagg said:“He is not at risk of developing and degeneration in the shoulder and I do not anticipate any further improvement nor any deterioration in his symptoms” [1/65/14.3]But in his second report Mr Fagg said that Mr Kilkenny had a 25% risk of requiring future surgery in the form of hemi-arthoplasty.Mr Limb advised that Mr Kilkenny would not need a hemi-arthoplasty in the future (but would have been at risk of further surgical intervention had he received internal fixation in April 2014).In his oral evidence Mr Fagg reduced the chance of needing future hemi-arthroplasty down to 5 to 10% as:“more realistic”his earlier figure being a:“best guess”.In oral evidence Mr Limb reasoned that there was insufficient evidence of incongruity and given the evidence that the socket and the humeral surfaces were intact there was nothing to base risk on.Given the evidence Mr Grice wisely did not purse this particular issue and accepted (correctly) that I would not be persuaded that there was enough risk to justify an award of damages.CONCLUSIONSThe Defendant did breach the duty of care it owed to Mr Kilkenny on 1st April 2014 by failing to advise him of the importance of attending the fracture clinic on 3rd April 2014 or by advising him of his options on 1st April 2014.I have found that surgery would have been an available option notwithstanding Mr Engelke’s evidence.However, the choice between surgery and conservative treatment would have been finely balanced and I have no evidence that Mr Kilkenny, once taken through the pro’s and con’s, would have chosen surgery.Even if there was evidence that Mr Kilkenny would have chosen surgery, there is insufficient evidence on which to find that on the balance of probability Mr Kilkenny would not have suffered a frozen shoulder and/or would have made a swifter recovery.DAMAGESBy reason of the matters above it is not necessary for me to assess damages.I am sure that Mr Kilkenny suffered from a reduction in his income because he had to engage others to do the work he would have done but as Ms Johnson rightfully pointed out the fracture was going to stop Mr Kilkenny from working for a while in any event. Therefore it would be a false exercise to compare the pre and post injury tax years. If I had to assess special damages I would not have accepted the calculations in the schedule and I would probably have taken the approach of awarding a conservative figure of about ?3,000.HHJ RALTON ................
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