24th May 2022
Lionel Stride (instructed by Emma Doughty at Slater & Gordon) represented the Claimant in a High Court Montgomery consent case arising out of the alleged failure to offer reasonable alternative treatment in the form of carotid stenting rather than a carotid endarterectomy in circumstances where he had already suffered a partial hypoglossal injury. Consequently, during the procedure, the Claimant suffered a second hypoglossal injury that caused complete tongue paralysis, loss of speech and inability to swallow, immediate cardiac arrest (caused by his paralysed tongue blocking his airways and leading to hypoxia), the need for a tracheostomy, laryngoscopy and the insertion of a PEG feeding tube. The injury left him unable to communicate verbally, permanently fatigued and with associated respiratory issues. He had retired prematurely and was living a far more isolated life due to his difficulty communicating.
The Claimant suffered from bilateral carotid stenosis for which carotid endarterectomy (“CE”) is the standard recommended procedure. As the stenosis was worse on the left, he initially underwent a left CE in June 2015, which was successful in reducing his stroke risk but caused a partial left hypoglossal nerve injury. This caused the Claimant some minor difficulty but he remained able to work, verbally communicate and otherwise live a full life. Months later, after presenting with symptoms on his right side, he was advised to undergo a right CE to further reduce the stroke risk. Despite having suffered a previous hypoglossal nerve injury, the Claimant was not given any other option for surgery. In particular, he was not informed that a recognised alternative treatment would be carotid stenting (“CS”), which carried a slightly higher stroke risk but no risk of a second hypoglossal injury. The Claimant therefore went ahead with a right CE. After suffering a second, catastrophic hypoglossal injury that could have been avoided, he claimed that he had not been properly consented for the surgery because of the failure to inform him of the availability of a reasonable alternative treatment in the form of CS (i.e., applying the principles set down in Montgomery v Lanarkshire Health Board  UKSC 11).
The Defendant denied liability, contending that CS was not a reasonable alternative treatment because it carried a much higher stroke risk; was not offered by or available to practitioners at the treating hospital; and transferring the Claimant to another hospital would have caused life-threatening delay. In addition, the Claimant was required to prove that he would have undergone CS if offered (given the higher stroke risk). Quantum also remained heavily in dispute, with the Defendant challenging amongst other things his earning capacity and likely retirement age; whether he reasonably needed ongoing assistance, provision for private transport and adapted accommodation as a result of his respiratory issues and consequential fatigue.
The claim settled at a JSM for £800,000 a month before trial. Although no formal concessions were made, the settlement sum reflected the Claimant’s evidence that he should have been treated as a non-standard case given his original hypoglossal injury; that he would have chosen CS if offered, thereby avoiding any risk of a second hypoglossal injury; and that his consequential injuries had caused permanent disability that would have resulted in him being awarded a high proportion of his pleaded case at the upcoming trial.