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Mills v Oxford University Hospitals NHS Trust [2019] EWHC 936 (QB) (12 April 2019)

Mills v Oxford University Hospitals NHS Trust [2019] EWHC 936 (QB) (12 April 2019)

C was born on 11 April 1967 and is currently 52 years old. On 4 December 2012... underwent brain surgery... specifically, a resection (otherwise known as de-bulking) of a left frontal glioma (i.e. a tumour). He suffered a haemorrhage during the course of the operation which caused him to suffer a stroke in the left anterior cerebral artery territory. [1]

C has brought a claim for damages...  for alleged negligence. He alleges that D:

i) Performed the surgery negligently; and/or

ii) Failed to take reasonable care to ensure that Mr Mills was aware of the material risks involved in the proposed procedure and/or of any reasonable alternative or variant treatments. [3] 

In summary, I have reached the following conclusions: 

i) The use of a minimally invasive endoscopically-assisted open craniotomy technique to resect C'slioma was not negligent.

ii) C has not proved, on the balance of probabilities, that D performed the surgery negligently by migrating into the midline structures (or otherwise).

iii) D discussed three treatment options (surveillance, biopsy and resection), and the risks and benefits of each of them, with C during the consultation in his clinic on 8 November 2012. In this respect, he complied with his duty to obtain informed consent, save to the extent that D should have advised that the glioma was an incidental finding and it was unlikely that it was the cause of C's headaches.

iv) D breached his duty of care by (a) not offering a microscopically-assisted resection procedure as an alternative to a minimally invasive endoscopically-assisted resection and (b) not explaining the comparative risks and benefits of these alternative surgical techniques.

v) The failure to advise the glioma was incidental and unlikely to be the cause of C's headaches had no causative impact. However, if C had been advised, as he should have been, with respect to the alternative surgical technique and the comparative risks and benefits, it is probable that he would have opted for resection using the standard microscopically-assisted technique.

vi) If C had undergone a resection operation using the microscopically-assisted technique (as he would have done if he had been properly advised), it is probable that if torrential bleeding had occurred it would have been controlled successfully much earlier and C probably would not have suffered a stroke.

vii) In any event, as C should have been advised of the possibility that using the endoscopically-assisted technique could pose a greater risk to structures and vessels that were not within the surgeon's direct line of sight, and the risk of damage to a vessel that was not within D's direct line of sight eventuated, the damage which occurred was within the scope of D's duty to warn. [29]

For all the above reasons the claim based on alleged clinical negligence in the performance of the surgery fails; the claim succeeds on the basis of informed consent. [229]

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