[2025] EWHC 2025 (KB)

I find that the claimant has not proved on the balance of probabilities that the defendant failed to advise her of the risks and benefits of a surgical haemorrhoidectomy including failing to advise her of the risk of anal stenosis. I also find that the claimant has not proved that the defendant failed to advise her of alternative non-surgical treatment options. I find that the defendant acted in accordance with the requirements in Montgomery and McCullough and took reasonable care to ensure that the claimant was aware of any material risks involved in the recommended surgical option and of any reasonable alternative treatments, taking into account the claimant’s particular circumstances. The combination of oral advice in consultation on 20 April 2019, the provision of the EIDO leaflet (which the claimant read) and the subsequent consent process undertaken on the day of the operation all contribute to my findings in this regard. Given my findings in respect of Issue 2, it is not necessary for me to deal with issue 3.

I do not accept the claimant’s submission that the letter following consultation on 20 April 2019 makes no reference to non-surgical alternative treatments. This is too narrow a reading of the letter. The wording “we had a discussion about haemorrhoid surgery and she is keen to proceed” is consistent with there being a discussion with the claimant “about” surgery as opposed to her merely being told that surgery was her only option. This is also consistent with what the claimant said in evidence which was that the defendant told her that surgery was his “preferred” method for dealing with the bleeding and her haemorrhoids, which carries with it the clear implication that there must have been a discussion about alternative methods which were not “preferred”. Both sides agree that for haemorrhoids of grade 3 or above, surgery was the definitive treatment but that the claimant should still be advised about other non-surgical options. In these circumstances it would be consistent with a responsible body of Consultant Colorectal Surgeons to give advice that surgery was the preferred option. The provision of the EIDO leaflet is also relevant because this lists the alternative non-surgical options. The claimant accepts that she read this leaflet but did not raise any questions or concerns about its contents. If as she claims, she would have opted for surgery if she had been given alternative options, then it is difficult to understand why she would not have asked questions about alternative options when she read about them in the leaflet.

As regards advice about the risks of surgery, I consider it significant that the second clinic letter states “I have warned her of all the usual risks, but in particular post-operative pain” (emphasis added). This is consistent with the defendant’s evidence that he warned the claimant of the risks (plural) and that he did not refer only to post operative pain. Again, these risks are all contained in the EIDO leaflet which both experts agreed is comprehensive and gives a good summary of surgical risks. The claimant says that she did not raise any questions when she read about these in the EIDO leaflet because she thought that the more drastic risks were less likely. She is right about this given that the risk of anal stenosis is agreed to be less than 1%. However, if the claimant was as averse to surgery as she now claims to be, then this is inconsistent with her not raising any questions about the more serious risks – particularly if (as she claims), she was given no advice about these at all by the defendant during the consultation.

As regards whether the claimant was advised about the particular risk of anal stenosis, I find, for the same reason, that she was. It is contained in the EIDO leaflet and both experts agree that this describes the risk in appropriate terms. I find that a responsible body of Consultant Colorectal Surgeons would consider this an adequate description of the risk of anal stenosis and the consequences, and I accept Professor Phillips’ evidence that that the defendant was not required to advise that anal stenosis could result in the exceptionally rare and exceptionally serious complications that the claimant in fact went on to have.

The consent form that was completed and signed on the day of surgery also supports my view. The defendant hand wrote several risks which specifically included “anal stenosis”. The claimant did not raise any issues about any of these risks. This is consistent with the defendant’s case that in the second consultation, he advised the claimant about risks, including specifically about anal stenosis specific. I accept Professor Phillips’ view, that the evidence taken as a whole is consistent with their having been a proper discussion and proper consent having been obtained.

I also find it significant that the claimant’s lengthy letter of complaint dated 10 October 2019 did not refer at all to any complaints or concerns about the grading of her haemorrhoids, nor the advice she had been given to undergo surgery, nor the alleged failure by the defendant to advise her about alternatives to surgery and the risks of surgery. I accept that the claimant’s main concern at the time she wrote this letter was her health ongoing health issues, but I do consider that if the claimant had in fact never been warned by the defendant about the risks of surgery, in particular the risk of anal stenosis then she would have raised this in the complaint letter. I also find it difficult to understand the claimant’s evidence that she did not include this information because she was worried that if she complained too much, she would lose her job. I note in this regard that her letter covers 2 closely typed A4 pages in which she raises several concerns about her care since the operation. In addition, the claimant’s letter says that at her appointment with the defendant on 14 August 2019 she “explained to him at this time that I believed I had an anal stenosis”. This suggests that she was aware of this condition as a complication of the operation. The defendant’s letter in response dated 21 November 2019 is consistent with his evidence in this case. He specifically says that “we had a discussion regarding conservative versus surgical management”, however in the letter in response dated 11 February 2020, the claimant makes no comment about this – which is surprising if she was not in fact offered any alternatives to surgery and that if she had been, she would have taken these alternatives.

I consider that this is an issue in which the claimant is particularly affected by the application of hindsight because her view is inevitably affected by the terrible outcome she has had from the surgery. I do not criticise her for this as it is an understandable reaction to what she has been through, but it does mean that the warnings given in Smith are particularly pertinent and it is therefore important to test (as I have done), the claimant’s evidence of her subjective state of mind against the objective evidence. I do not agree with Ms Pooley that the extreme facts of Smith mean that it is not applicable to this case because in my view what Smith does is make the valid point that a claimant’s evidence of her subjective state of mind needs to be properly tested against other relevant, objective evidence. This general principle would be appropriate in respect of any witness in any type of case.