Expert evidence plays a pivotal role in nearly every clinical negligence claim, with the trial outcome often depending on which expert opinion the Judge favors – that of the claimant or the defendant. The recent High Court ruling in Lochrie v Edwards underscores the critical importance of how evidence is presented with a consent case.

 

The Plaintiff’s Claim

The Plaintiff’s case was that her ophthalmic condition was not adequately investigated by the Defendant prior to her surgery, which it was alleged impacted on consent. The issue of consent was examined in detail.

The following allegations were put forward by the Plaintiff:

[1] Prior to surgery, she suffered from dry eyes which required lubricating drops 3 to 4 times per week which she purchased from Boots. She also had pre-existing corneal neuralgia. These conditions were not adequately investigated and discussed with her.

[2] The Plaintiff indicated that she was risk adverse. From information that she had obtained on the internet, the Guide that she received from the Defendant along with the Consent Form; she felt that the surgery “carried no risks… and was completely safe.”

[3] The Plaintiff stated that the Defendant did not discuss the health questionnaire which stated that the Plaintiff had mental health issues and possible dry eyes. Nor did the Defendant discuss the risks of the procedure at any stage other than the risk of infection.

[4] On the day of the surgery, the signing of the consent form was rushed and took less than a minute. She was not asked to read the form, just to initial every page and sign at the end. She alleged that she did not read the form.

As is common in these cases, it was not alleged that the surgery itself was performed negligently.

 

Judgment

It was common ground between the experts that, in 2016, the link between LASIK and corneal neuralgia was developing science. This would not have been known to all LASIK surgeons. There can therefore have been no breach of duty on the part of the Defendant for failing to specifically refer to corneal neuralgia.

HHJ Baddeley accepted the Defendant’s evidence over the Plaintiff’s, specifically:

• The Plaintiff’s discomfort/pain wearing contact lens was due to contact lens intolerance and not an underlying condition of meibomian gland disease. The plaintiff’s contact lens intolerance and issues with anxiety and depression are common in people seeking laser surgery and not factors that significantly increase risk.
• Given the high risk of LASIK patients suffering with dry eyes in the immediate aftermath of surgery, it most unlikely that the Defendant would have failed to have mentioned dry eyes at all at the consultation.
• There were contradictions in the Plaintiff’s evidence and her pleaded case. She portrayed herself as a well-educated, risk averse patient, who had already decided not to proceed with another provider, yet she stated that she only glanced over the written documentation (the Guide and Consent Form) and instead relied solely on the discussion with the Defendant to satisfy herself that the procedure was safe.

 

Conclusion

The Judge found the Defendant’s consent process as a whole was sufficient to inform the Plaintiff of the material risks and dismissed the Plaintiff’s case. Importantly, on the evidence heard, the Judge tended to prefer the evidence of the Defendant over that of the Plaintiff, which is crucial when dealing with a consent case.

 

For legal guidance and advice regarding medical negligence, please contact Kevin Hegarty or any member of our Healthcare team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.