Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 123
A619/10	OPINION OF LADY DORRIAN in the cause CLAIRE MURRAY Pursuer; against NHS LANARKSHIRE HEALTH BOARD Defender: ________________

Pursuer: A Smart; Balfour & Manson LLP

Defender: Heaney; Central Legal Office

26 July 2012

The issue

[1] On 6 February 2008 the pursuer broke her humerus falling from a horse. She was treated conservatively at Monklands Hospital under the care of Mr Ian McLeod, Consultant Orthopaedic Surgeon, and his registrar Mr Alan Murray. It is not suggested that there was any negligence in her treatment until 5 May 2008 when, as originally pled, it is claimed that a recommendation should have been made for surgical fixation. Having failed to prove that case, the pursuer now maintains that she should have been "offered" the option of surgical fixation. The issue before me is whether or not the actings of Mr McLeod on 5 May fell below the standard to be expected from an ordinarily competent orthopaedic surgeon exercising ordinary skill and care. Accordingly, the pursuer requires to satisfy me that on 5 May no ordinarily competent surgeon exercising reasonable care would have failed to raise surgical fixation as a course of treatment which the pursuer might wish to follow.

Background

[2] The nub of her case is that by 5/05/08 it should have been apparent that the fracture was "on balance unlikely to proceed to union, as there was no functional progression and the pursuer's pain persisted." There is an averment at pp 7-8 of the record that any reasonably competent consultant orthopaedic surgeon:

"would have discussed with the pursuer the treatment options available, in light of her poor function, persisting pain and poor x-ray findings, and the risks inherent in operative treatment."

It is averred that any reasonably competent orthopaedic surgeon would, at that stage, have recommended surgical fixation, and that Mr Macleod was negligent not to do so. The pursuer avers she would have accepted such a recommendation. This case on record has not been established in evidence. None of the experts supported the proposition that Mr MacLeod should have recommended surgical fixation on that date. The highest it came to was a suggestion that he should have discussed the options with the pursuer, and should have "offered" her the option of surgical fixation. Based on the averment at pp 7-8 of the record, referred to above, counsel for the pursuer submitted that this was simply a modification or development of the case on record. In light of the averment from pp 7-8 quoted above, I agree and will proceed to deal with the case on that basis.

[3] On the basis of the case on record, the defenders agreed damages. They did so on the basis that if the pursuer proved that it was negligent not to make such a recommendation, it was conceded that she would have accepted such a recommendation and would have proceeded to have such an operation within the NHS. Mr MacLeod would not have been willing to carry out surgical fixation at that time and none of the experts were critical of him for that view. Therefore, had he raised with the pursuer the option of surgery, she would have to have been referred to another surgeon for treatment. NHS surgical treatment would in the circumstances have been by means of plating. Plating generally gives a better outcome in such fractures than fixation with an intra-medullary rod, and it is anticipated that she would have made a complete recovery from such an operation. In fact, following the consultation on 5 May 2008, the pursuer sought a second opinion privately and was given operative treatment by means of internal fixation with an intra-medullary rod, which has left her with some residual difficulties. Damages were agreed, on that basis, at £55,000 net of recoverable benefits.

[4] Given the pursuer's change of tack, the defenders' concession of fact relating to the acceptance of a recommendation could not stand. The defenders were not prepared to concede that the pursuer would have proceeded to surgical fixation merely on the basis of discussion of such treatment as "an option": however, if negligence were established and if the pursuer had proved to the satisfaction of the court that she would have proceeded to surgical fixation on the basis of such a discussion, the agreement as to the level of damages remained.

Evidence

[5] On breaking her arm the pursuer was treated at A&E at Monklands Hospital where it was noted that she had a midshaft fracture of the humerus, in good alignment and with no radial nerve symptoms. It was deemed reasonable to try conservative treatment and a plaster was fitted. She was seen again at clinics on 11 and 18 February, 7 April and 5 May. She made an unscheduled visit to the hospital on 10 March because of pain. She was x-rayed, reassured that it was healing as well as can be expected and sent home. She saw Mr MacLeod at the clinic on 18 February when the plaster was removed and a functional brace fitted. By 7 April she was still in pain at the site and had a markedly stiff elbow. She was referred to physiotherapy for mobilisation. On 30 April the physiotherapist wrote to the hospital for advice on mobilisation. She noted that although the patient had reported an improvement in functional movement, all movements of the shoulder remained very restricted and her elbow remained in 25° of flexion. Mr Bennet replied that she had not yet achieved union of the fracture "although things are progressing"; that time for union of this kind of fracture was 20-22 weeks; and that gentle mobilisation would be appropriate. At the clinic of 5 May, Mr Bennet noted that there was still some movement at the fracture site and pain. The patient still had a stiff shoulder but was mobilising this with physiotherapy. X-rays were noted as showing ongoing callus formation. He discussed the case with Mr MacLeod and it was decided to follow her up in another 6 weeks and if healing had not progressed perhaps to try ultrasound.

[6] In her evidence, the pursuer gave an account of having been throughout in considerable pain, becoming depressed as time went on with continued pain and without any significant improvement in what she could do and becoming worried about not being able to return to work. It is not at all clear that the extent of her pain or her concerns were communicated to Mr Bennet or Mr MacLeod. I will return to this. At any rate, after the clinic of 5 May she again attended physiotherapy. She was crying in pain and the physiotherapist suggested a second opinion. She obtained an appointment with an orthopaedic surgeon at a private hospital who it seems, wrongly told her that the fracture was not in fact a simple one but was comminuted in three places. She was told that she required surgery and proceeded to have an intra-meduallry rod inserted. This has not been wholly successful and has left her with some deficits.

[7] There was some issue about the nature of the original discussion which led to conservative treatment being embarked upon, but since it is admitted that such treatment is standard practice I need not address the matter in detail. The clinical notes for 6 February record "reasonable to try conservative management". The notes for 11 February record "I have advised Mrs Murray that conservative management would give her the best outcome but will take some time to heal". I accept that this advice was given by Mr Bennet. Not surprisingly, his evidence was that he did not remember the pursuer and he was reliant on the notes and his routine practice. His practice is to advise that such injuries could be treated operatively but that an operation would not normally be considered without the presence of certain complications, absent in this case. He would certainly recommend conservative management. The arm had originally been put in plaster but on 18 February Mr MacLeod changed that to a functional brace. Mr MacLeod also could not remember the pursuer and was, like Mr Bennett, dependent on the notes and on his usual practice. His usual practice, which I accept he would have followed, is to explain the injury, show the x-rays, and explain that after 12 weeks half of such fractures will have healed, whilst half will not. The pursuer appeared to have little memory of the clinic of 18 February and thought she had seen Mr Bennett that day, although she accepted she might have been mistaken. A radiologist's report of a comparison of the x-ray taken on 10 March with that taken on 7 April read as follows:

"Direct comparison has been made with a previous film from the 10/03/08. The alignment of the bony fragments is near anatomical. There is evidence of callus formation."

In his note from the clinic of 7 April, Mr Bennett recorded: "Check X-rays today show good on-going new callus formation but she still has some pain at the fracture site".

[8] Mr Bennet said that it was practice to give patients a time scale in which healing might be expected. "Three months is often quoted but in my experience it can be longer." He thought he probably said three months would be when it might start to heal but it could take longer than that. In particular, it can take more than 12 weeks to regain function, even though the healing process is taking place. The pursuer says she was initially told it would take "about 12 weeks" to heal. She accepted in cross-examination that what she had been told was that the average time for healing was 12 weeks. She understood that it might take more or less time. She was not given a promise that she would heal within 12 weeks. At the clinic of 7 April she said she needed to get back to work as she was self employed and she was also worried about long-term damage. She said Mr Bennett advised her that "these breaks sometimes take a long time to heal and that there wouldn't be any long term damage". At that stage Mr Bennett said he would have re-assured the patient that it would not be surprising if she was still in pain, that her healing pattern was not outwith the norm and that they would still expect her fracture to heal with conservative treatment.

[9] On 5 May Mr Bennet told her that "it was healing but at a very slow rate". The pursuer stated "I was shocked - I thought I was nearly there". She said that Mr Bennett told her "I don't know what to do with you" and that he was going to "consult his boss". He told her that they would see her in another 6 weeks and if it hadn't healed would try ultrasound. He also told her she needed to pull the brace up. As she was leaving the clinic he said "if that doesn't work we are looking at surgery". Mr Bennett's note of 5 May records that the patient was being reviewed at 14 weeks after the fracture (in fact it was 12.5 weeks). It reads:

"X-ray today shows ongoing callus formation although there is still some movement at the fracture site and pain. She still has a stiff shoulder and elbow but is mobilising these with the physios. I discussed the case with Mr MacLeod and we will leave her in a functional brace and review her at 6 weeks. If healing is not progressed by this point we will consider ultrasound treatment with an Exogen unit".

Mr Bennett was adamant that he would have mentioned to the pursuer the risk that the bone might not unite. I accept that he would have done so. It is clear from her own evidence that he told the pursuer that progress was slow; and that she understood that if progress did not improve treatment by ultrasound or surgery might require to be used. Such steps would not be necessary if the fracture united.

[10] Mr Bennet recognised that the pursuer was at the slower end of the healing spectrum but opined that this does not make her position abnormal. He did not believe that she had gone beyond the norm at the 12 week period but recognised that since healing is taking longer than might be expected a question arose whether this was becoming a case of delayed union. In his view there was a healing process by 5^t May and the callus formation was greater than it had been the month before. X-rays usually lag behind by about a month biologically. In his reply to the physio he had quoted 20-22 weeks as the average: he could not now say where he got that figure but would not have written the letter without discussing matters with Mr MacLeod. There is a variation of opinion as to the time it takes.

[11] Mr MacLeod described the x-ray of 10 March as showing a fairly standard mid shaft fracture of the humerus in very good alignment, which hasn't healed yet. It shows that a brace has been reasonably well applied to the arm. There is no callus formation but this would not be expected at that stage. The 7 April x-ray would seem to confirm that the fracture was on course for healing. There is new bone formation which is a positive thing. In his view by 5 May the pursuer was still within the average group for healing. "She fits with a large cohort of people who would go on to heal. Perhaps half." About half of all patients would have healed by this stage: unfortunately she was not in that half. The x-ray showed the bones in the correct place, with good alignment and probably some more bone formation than shown on the previous x-ray.

Experts

[12] The pursuer called Mr Benedict Clift, Consultant Orthopaedic and Trauma Surgeon at Ninewells Hospital, Dundee and honorary senior lecturer at the University of Dundee. He explained that the purpose of a brace in conservative treatment is to help promote a gradual return to function as the fracture heals. Nature will heal the fracture: the brace is designed to help the patient gain some use of the arm as it does so. Reviewing the x-ray of 10 March, he considered that the alignment is good, and there might be a hint of new bone formation at the very tip of the bone, but not otherwise. He did not agree with Mr Bennet's assessment of the x-ray of 7 April as showing ongoing callus formation. The evidence of healing is minimal. He would be concerned that she was not showing progress. The humerus tends to heal quite well. This one doesn't appear to be doing so. By 8 weeks with that appearance and ongoing symptoms "the majority of doctors should be discussing treatment options". An important decision had to be made: continue or change tack. At 5 May, discussion of the x-ray alone in a patient who is having problems would be inadequate. If Mr MacLeod believed that his decision need only be based on the x-rays that is inadequate. One of the options which should have been discussed is surgery. He suggested that certain studies showed a median time to healing was 9-10 weeks. By 5 May there was no substantial radiological evidence of healing; and no good clinical evidence since there was still severe pain and a mobile fracture site. Whilst there might still be a possibility of healing, the functional problems and pain are important. In cross-examination he said that Mr MacLeod's view that at 5 May it was reasonable to wait a further 6 weeks might be the correct view "but not on the X-rays alone". "My view is that the patient should have the treatment options explained which would include conservative treatment and an operation: the key is that it is shared with the patient". The GMC Guidelines on Consent of 2008 sum up what was practice for some time before that. Paragraph 5(c) is the main one to consider in the present case. (see below).

[13] The defenders called Mr Michael Robinson Consultant Orthopaedic Surgeon at the Royal Infirmary of Edinburgh and honorary senior lecturer in orthopaedics at the University of Edinburgh. He said that the signs to look for to indicate that a fracture is healing are that pain is diminishing, there is reduction in the amount of mobility at the fracture site and functional use of the joints at either side. Clinical and radiological signs do not always marry up. "Assessment of union is an art, not a science and clinical and radiological symptoms need to be taken together." He considered the x-rays of 7 April and 5 May side by side. They showed a simple fracture of the humerus, well aligned and with early signs of bone formation around the site of the fracture in two places. His own feeling was that there has been some quantative increase in bone formation between the dates of the two x-rays. When a fracture is well aligned it is unusual to see abundant bone formation as bone forms internal callus as well, which is difficult to detect with conventional radiography. The overall picture was that the fracture could be described at this stage as "slow to heal". It cannot be described as "non-union". If it remained like this for another two weeks or so it would be appropriate to consider it a case of "delayed union". There are radiological signs which can indicate that a fracture is heading towards non-union. These are that the bone looks thinner; the gap starts to widen not narrow; and there may sometimes be an appearance of a "pseudo-membrane". None of these signs were present on any of the x-rays. The decision to continue with conservative treatment and a brace for 6 weeks was standard and acceptable. At this stage it would not be unusual for patients to have ongoing pain. There was still every chance that with continued conservative treatment the fracture would have gone on to heal satisfactorily. The question of whether to operate or not at this stage would be the subject of some debate amongst orthopaedic surgeons. Some would be "thinking seriously about surgery, others would not". There were indications that the fracture might proceed to unite without exposing the patient to the risks of surgery; this needs to be balanced against the risk that the patient is in the same position six weeks later, and bearing in mind that the time for recovery of function post-operation might be a couple of months.

[14] At 10-12 weeks she is part of the 50% who would not heal within that time and the prospect for going on to non-union increases. She should have been made aware of that. Nevertheless there was a very good chance that she would have gone on to heal in the six week period before she was reviewed. If a patient is not given any discussion of the options that would be substandard, but if surgery as an ultimate possibility was mentioned at the end of the clinic, as the pursuer suggested, then the subject had been broached. Unless she expressed interest in pursuing the matter further, that would have been normal. Only if the patient expressed interest in surgery or extreme dissatisfaction with her treatment would the matter have been discussed further.

[15] He had not seen the GMC guidelines on consent from 2008, but it would be usual practice to discuss treatment options with a patient. In particular, if one was embarking upon a different course, it would be appropriate to explain the reasons for doing that. Once treatment is embarked upon unless the patient raises significant concerns about it, "it is normal for treatment to follow the usually accepted pattern". Issues of consent arise in relation to undergoing procedures like surgery or changing tack, not continuing with a course which is already being undergone. Once a course of treatment has been embarked upon, it is customary for the review appointments to be monitoring and following the initial treatment plan. Only if the patient showed a significant interest in exploring other treatment options would there be discussion of them: it would not be unusual simply to say "we will carry on and see you in 6 weeks time and re-assess".

Submissions

[16] Both parties presented detailed written submissions, so what follows is a very brief summary.

Pursuer

[17] Where a number of reputable surgeons would be sufficiently concerned about a patient's condition to have proceeded to surgery, it becomes a "treatment option" and requires to be discussed with the patient. Both experts said that by 5 May some surgeons would have been considering surgery. The surgeon is entitled to recommend continuing conservative treatment but the decision must belong to the patient. Having regard to the GMC Guidelines on Consent 2008 (see below), if the patient is not told about the treatment options, including surgery, then she has not consented to the treatment embarked upon. Mr MacLeod's failure to raise surgery as an option was accordingly negligent. Counsel supported her submissions by reference to two cases concerned with the non-disclosure of risk: Sidaway v Bethlem Royal Hospital [1985] 2 WLR. 480 and Pearce v United Bristol Healthcare NHS Trust 1999 ECC 167. The patient has the right to make an informed choice as to any course of treatment and ultimately the court is the arbiter of what constitutes informed consent: Chester v Afrar 2005 1AC 134; Markose v Epsom & St Helier NHS Trust [2004] EWHC 3130 "It is for the patient, not the doctor, to decide what is in the patient's best interests. [Chester]. Reference was also made to Webb v Norfolk & Norwich University Hospitals NHS Trust [2011] EWHC 3769; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771; Honisz v Lothian Health Board & Ors 2008 SC 235; Hunter v Hanley 1955 SC 200. The pursuer has proved that she would have opted for surgery had the matter been discussed with her and so she should be awarded damages.

Defenders

[18] The primary submission for the defenders was that the pursuer had not proved her case as averred. The case now argued was a different case and not merely a development of the case pled. As to the case which is now argued, the evidence shows that Mr MacLeod was acting within the bounds of clinical judgement when he decided not to mention surgery as an option. The possibility of surgery does not always require to be mentioned simply because some doctors might follow that option. The pursuer has failed to show that no orthopaedic surgeon of ordinary skill, acting with reasonable care would have failed to offer surgical treatment to the pursuer on 5 May 2008. In any event, there is no way of knowing what would have happened on a bare mention of surgery as a possibility without a recommendation to proceed, so the pursuer fails on causation.

Discussion

[19] The pursuer is a hairdresser who works in partnership with her husband. He does most of the cutting; she does most of the colouring. This can't be done one-handed and so for the duration of treatment she was unable to work. The evidence suggests that a fracture of the humerus is a particularly painful injury, likely to remain painful for at least some reasonable part of the healing process. Mr Bennett said that "it is extremely painful and the initial stages are challenging for the patient". Mr MacLeod said that a broken humerus "is miserable and how someone tolerates it is probably down to how they tolerate pain". Mr Robinson said that "ongoing discomfort is not unusual: the quantity and quality of pain is very hard to assess, it is a very personal thing"

[20] The evidence is that the pursuer did not cope well with the pain which she experienced. In evidence she said that she was in pain throughout the process; she felt that the bones were moving; and she did not cope well with the functional brace. The purpose of a brace is to maintain the position of the fracture but allow use of the arm. It is fitted by specialists and can be adjusted. The pursuer in chief said that she didn't know it could be adjusted, despite the Velcro straps. In cross she accepted that she might well have been told that she could contact the plaster room for adjustment if it became necessary. At all events she had problems with the brace slipping and at one visit to the clinic Mr Bennett took her to the plaster room and adjusted it or arranged for it to be adjusted. The pursuer obviously became frustrated and somewhat depressed about the continuing problems she was having.

[21] I realise that the pursuer has no recollection of being told that the fracture might not proceed to union but that is a clear inference from the possibility that surgery might in future be required. It seems that throughout the pursuer was a very passive patient. She appears to have asked virtually no questions of those treating her (even on 5 May when in evidence she said she was very unhappy with her treatment she didn't raise the timescale or ask any questions about her treatment); and at stages does not seem to have taken in the information she was given. For example I am fully satisfied that she would have been told at the time of fitting that the brace was adjustable; and that she could return at any time to have it adjusted, yet she does not seem to have understood this, despite the rather obvious fact that the brace was fastened with Velcro straps. I accept that Mr Bennett and Mr MacLeod would have followed their usual practice and that they would have given the pursuer the advice which they say they would have given. It appears that the pursuer might not always have taken in or understood that advice. It is of course for the doctors to give the advice, but in the absence of further questions from the patient it is not unreasonable to assume that the advice has been understood, particularly when dealing with matters which are not particularly complicated.

[22] The pursuer said that on 11 May there was no discussion regarding her work, yet Mr Bennet has recorded that she is a right handed hairdresser. It was not until 7 April that the pursuer says she told Mr Bennet she needed to get back to work as she was self employed and she was worried about long term damage. He said these breaks sometimes take a long time to heal and there wouldn't be any long term damage. Having noted that she was still very stiff (she said in evidence that until this point she had been doing nothing with her arm) he referred her for physiotherapy to encourage mobility. This is clearly a step designed to achieved functional return and would be an aid to an early return to work. The letter from the physiotherapist said that the pursuer had reported an improvement in functional movement, and in evidence the pursuer agreed saying "I'd say there was a slight improvement, whether less pain or whether I was more used to it". Accordingly, although she said that she was not coping well, was often crying with pain and worried about work, there is little evidence that she actually said this to either of the surgeons treating her, as opposed to the physiotherapist. Indeed when asked whether she had discussed the timescale with Mr Bennett on 5 May, when, by her own account in evidence she was reaching the end of her tether, the answer was "No, I didn't because I felt they were the doctors and I'm not, I felt they knew best for me." When she did raise a matter, such as her concerns about getting back to work, action was taken by referring her to physiotherapy.

[23] It should perhaps be noted that the term "healing" does not necessarily mean union and vice versa, and there seems to be no real consensus as to the meaning of either term. Much depends on how one uses the term and what one means by it. Nor is there an exact consensus on what is delayed as opposed to non-union, and when it can be said to occur. Mr Bennett said that although healing might be expected to have started within 12 weeks it might take longer than that for function to return. Mr Clift explained that although union might be achieved, that would not necessarily mean recovery, as there might remain some significant functional deficits which required to be addressed. This is what the brace is designed to prevent. Mr Robinson said the patient might expect to have to wear a brace for 16 weeks. Recovery of muscle function and mobility can take some considerable time after the fracture itself has united. That apart, there is clearly a variation in thought as the time it might take for the healing process to start to establish itself, the average being thought to be 10-12 weeks, but an upper period of 18 or even 20 weeks or so not being unknown. Mr MacLeod explained that non-union refers to a bone fracture which has not healed, but when you can apply the term varies enormously.

[24] The decision about what the options will in fact be involves clinical judgement based on the surgeon's assessment of progress and prognosis. No-one is suggesting that surgery should have been recommended on 5 May. The way Mr Clift put it was "not that she should have had surgery but she should have had a discussion of the pros and cons with a view to the necessary decision." Clift assessed the situation as more requiring of intervention than Mr. Robinson, based on her desire to get back to work; and the amount of pain she was in, but even he did not suggest that things had reached the state where surgery actually had to be recommended. It is not as if the treating doctors or Mr Robinson ignored these factors either. Mr Robinson noted that patients sometimes have unrealistic expectations about what they will be able to do, and pointed out that she would have remained off work even with an operation. The NHS target for performing the operation would have been 9 weeks and she could have expected to be off a further couple of months after that. She was in pain, but that was not unusual. What was perhaps unusual was her reaction to it or perception of it: her references to "crying in pain" suggested to him there might have been a degree of emotional response. Mr MacLeod also thought that it was not unusual for her to be in pain, saying that as the bone had not yet healed it will be painful. It is a sore injury and generally remains sore until there is solid healing. He thought she would have been unlikely to get back to work within 18 weeks in any event.

[25] Despite attempts by counsel for the pursuer to categorise the approach of Mr MacLeod on 5 May as having based his views only on the x-rays, a matter of which the experts would have been critical, I find that this is not a fair portrayal of what he actually said. He did have the x-rays, as it was usual for both himself and Mr Bennet to have access to them. The doctor would perhaps bring the notes to discuss the case. Mr Bennet's routine practice would have been to discuss patient factors such as pain, how the patient was coping and so on. He did not recall doing so but would have been surprised if he had not. Mr MacLeod's view was not that the social situation of the patient wasn't important, but "..it would not play a big part in the decision whether or not to operate." Mr Bennet's note records that there was "still some movement at the fracture site and pain. She still has a stiff shoulder and elbow". It then records "I discussed the case with Mr MacLeod and we will leave her in the functional brace and review her in 6 weeks". Mr MacLeod in explaining the process said "Mr Bennet saw her, assessed her, discussed it with me and proceeded appropriately." When it was suggested to him that he should have seen the patient himself he said "Given the evidence from Mr Bennet's examination and our discussion there was nothing additional to be gained". "I had the information I required to make the decision at the time". It is clear that this discussion was an integral part of Mr MacLeod's decision-making and he did not simply proceed on the basis of an x-ray but took account of both the clinical and radiological symptoms, as both Mr. Clift and Mr. Robinson said he should do.

[26] Although of course it would be possible to treat an injury such as this with surgery at the outset, it is admitted for the pursuer (p13C-D) that ordinary clinical practice is to manage humeral fractures conservatively and that surgery is attended with risks. Surgical intervention at the outset might result in an earlier return to function but in the long term there is no difference between the outcomes from each form of treatment. Conservative management with the use of a brace to assist return to function is "the default position" (defenders' expert, Mr Robinson). The brace is usually applied after a couple of weeks in plaster as it is too painful to apply it at the start. Only 5% of such fractures go on to non-union following conservative treatment. Therefore there is no criticism of the decision to commence on conservative treatment. Nor is it suggested that there was any negligence in continuing such treatment through the follow-up appointments on 11 and 18 February, 10 March and 7 April. What is suggested is that the situation had changed sufficiently between 7 April and 5 May to make it clear that the fracture was not likely to lead to union, making operative treatment a serious option which should have been discussed with the pursuer. Counsel for the pursuer submitted that until the 5th May she had "not gone into the area where lack of clinical progress was concerning". However, since a number of reputable surgeons would have carried out surgery at that point, it has to be regarded as a treatment option which should have been discussed with her. In other words, since both experts agreed that by this time some surgeons would have decided to operate, Mr MacLeod's failure to discuss that as an option for the pursuer was negligent. At that point the decision whether conservative treatment should continue or operative treatment be carried out is one for the patient.

[27] Counsel for the pursuer sought to make much of the GMC Guidelines on Consent which are dated 2 June 2008. These of course post-date events in this case, but there was some evidence that the guidelines merely encapsulated what had until then been standard practice. The guidelines note that:

"No single approach to discussions about treatment or care will suit every patient, or apply in all circumstances. Individual patients may want more or less information or involvement in making decisions depending on their circumstances or wishes. And some patients may need additional support to understand information and express their views and preferences".

The paragraphs relied upon are paragraphs 5 and 53 which read as follows:

"5............

(a) The doctor and patient make an assessment of the patient's condition, taking into account the patient's medical history, views, experience and knowledge.

(b) The doctor uses specialist knowledge and experience and clinical judgement, and the patient's views and understanding of their condition, to identify which investigations or treatments are likely to result in overall benefit to the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice.

(c) The patient weights up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one. They also have the right to accept or refuse an option for a reason that may seem irrational to the doctor, or for no reason at all.

(d) If the patient asks for a treatment that the doctor considers would not be of overall benefit to them, the doctor should discuss the issues with the patient and explore the reasons for their request. If, after discussion, the doctor still considers that the treatment would not be of overall benefit to the patient, they do not have to provide the treatment. But they should explain their reason to the patient, and explain any other options that are available, including the option to seek a second opinion."

"53. You must make sure patients are kept informed about the progress of their treatment, and are able to make decisions at all stages, not just in the initial stage. If the treatment is ongoing, you should make sure that there are clear arrangements in place to review decisions, and if necessary, make new ones."

[28] Counsel for the pursuer suggested that the clinic of 5 May 2008 was a "review" of treatment for the purposes of these Guidelines and that Mr MacLeod, in not raising the possibility of surgery, was in breach of the guidelines. I consider that there are several difficulties with this submission. In the first place, this is not in reality a case about consent at all. The pursuer had consented to the treatment which had been undertaken and there is no criticism of those treating her for embarking upon that treatment. There is not even criticism of them for continuing with that treatment on 5 May. Whilst it is clear that the clinic on 5 May might, as with any of the preceding clinics, can be described in some senses as a "review", it is only a review in the sense that it entails a monitoring of her condition and of the course of treatment which has been embarked upon. It is not a treatment review in the sense of meaning a meeting at which a decision about the whole nature of the treatment will be reconsidered. As Mr MacLeod put it, active conservative management includes regular monitoring. That is what was happening at each of the clinical reviews following 6 February. It does not mean that at each review there required to be a discussion about all future possible forms of treatment. A further difficulty for this argument is that ascertaining at what stage a course of treatment opens up as a realistic option involves a considerable element of clinical judgement. It is not suggested that there should have been a discussion of the type envisaged at the clinic of 7 April. As Mr MacLeod rightly pointed out, an operation was a possibility from the moment she came in the door. It starts off as a low prospect and increases with time. There will be certain conditions where, from the outset, several different treatment options may realistically and equally be available and suitable. At the other end, there may be a condition which has reached the stage where only one treatment option may be viable. In between there will be a considerable range of situations where the question of whether a particular form of treatment is really an option will depend on clinical judgement. In this case it is only by the 5 May that it is said that the situation had progressed in such a way that a discussion regarding surgery became necessary. However, as Mr Robinson said, assessment of union, or otherwise, is an art not a science. It requires to be made on an amalgamation of the radiological and clinical findings. The clinical picture was that there had been reported some, admittedly minimal, functional improvement. The stiffness was being addressed by physiotherapy. The assessment was being made at 12 weeks, when perhaps only half of all such fractures might be expected to have progressed to some union. The radiological evidence is also important, yet as even Mr Clift recognised, interpretation of x-rays may differ. Indeed, Mr Clift did differ in his opinion from the interpretation of the x-rays by all the other medical witnesses. Both Mr Bennet and Mr MacLeod assessed the x-rays of 7 April and 5 May as showing callus formation which was slightly more advanced in the first than the second. Mr Robinson agreed saying that there had in his view been some quantitative increase in bone formation between the two. The report of the radiologist for the x-ray of 7 April was that alignment was near anatomical, and there is evidence of callus formation. Looking at the whole picture, it was a matter of clinical judgement for Mr MacLeod to determine whether surgery was an "option" and in my view he cannot be considered negligent for failing to discuss such an "option" with the pursuer. The fact that a number of other orthopaedic surgeons might have reached a different view does not mean that Mr MacLeod was wrong in reaching the decision which he did. I do not consider that cases based on failure to disclose a particular risk are of assistance when considering a case such as the present. The cases relied on by the pursuer would be relevant to a situation where a decision is being made whether or not to embark upon a course of treatment. That is not the position here: the course of treatment has been agreed and embarked upon. What is at issue is whether the case has reached the stage when continuation of that treatment is no longer really the treatment which was agreed and originally embarked upon. At what stage, following a course of conservative treatment, is it necessary to consider that the treatment may not be working and that other options required to be addressed? Apart from the very clear cases at either extreme to which I have already referred, whether and when such a stage has been reached will usually be very much an assessment of clinical judgement.

[29] Even if I am wrong about that, the question would arise whether the pursuer has established that if the option of surgery had been raised with her, she would have followed it up and elected to have internal fixation at that time. In my opinion she has not.

[30] The pursuer explained that she was at the outset "extremely frightened of surgery". Her husband said that she "is absolutely terrified of anything medical". When Mr Bennett mentioned surgery as likely if ultrasound didn't work, she was upset, because she said she would rather have had surgery at the outset then go all that time and need it anyway. At that point if the doctors had said "you need surgery" she would have had it. She would have wanted to know if there was a prospect of surgery stopping the bones moving. Asked "if surgery was put as an option on 5 May what would your response have been?" she replied "I would have taken surgery because I know it would have been fixed then". That assertion is now at the heart of the case. However, I have some difficulty in relying on it. Of course what happened is that the pursuer obtained a second opinion and pursued the option of surgery. But that was following her discussion with the surgeon at the private hospital. He appears to have told her, erroneously, that the bone was severely comminuted. She was given to understand that there were two additional fractures which had not been disclosed to her. He told her that the healing process was finished, that the bones had not united and that she "needed" surgery. Of course, a factor in her decision was the functional improvement which was expected to follow surgery, but it is clear that the opinion and advice she was given during this conversation at Ross Hall were major factors in the decision. Being told, incorrectly, that the bone was broken in two additional places would have undermined any remaining confidence which she had in the treatment she had been getting at Monklands. She was now being told that surgery was effectively the only option. By contrast, had the matter been discussed by Mr MacLeod, the opinion and advice which she would have received would have been quite different. She would not falsely have been given the impression that the injury was a comminuted one. She would not have been told that surgery was her only option. She would not even have been recommended to have surgery. She would have been told that Mr MacLeod himself was not willing to operate and that she would have to be referred to another NHS surgeon. This of course would have taken time. According to Mr MacLeod, she would have not have been told "I'm sorry its hopeless we're going to have to do an operation. I would say in my opinion the fracture still has a reasonable chance of healing whereas other options carry risks." In his view it is very rarely a clear-cut decision whether to operate with a humeral fracture. At 5 May he would not have been prepared to operate right away as in his view it would not have been in the best interests of the patient. In his view, at that stage the risks of surgery still outweighed the potential benefits.

[31] It is clear to me that although the pursuer accepted that she was not told that her arm would heal within 12 weeks, and that she knew it might take longer, she had fixated on this period as the time within which she was expected to heal. That in my view contributed to her concern when, on 5 May at 12.5 weeks, she was told that healing was slow. Her evidence in cross-examination was that had Mr Bennet at the outset explained that a period of 22 weeks could still be within the normal range for healing "I'd probably have went with what he said and been happy for him to continue treating me". In other words, even if, at the start she had known that healing might take considerably longer than 12 weeks, she would still have opted for conservative treatment. On this whole matter, I am not persuaded, in light of the very different conversation she would have had with Mr MacLeod on 5 May compared to that which she had at the private hospital, that she would have proceeded to have surgery if the matter had been raised at the consultation on 5 May simply as a possible option and not as a recommendation.

Decision

[32] I will therefore repel the pursuer's pleas-in-law, sustain the defenders' second and third pleas in law and assoilzie the defenders.