Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 31
Clinical Negligence: Insights on
Surgical Planning, Informed Consent
and Complication Occurrence
by Lynn Livesey, Laura McMillan & Lauren Chisholm at Brodies LLP
The recent High Court decision in HQA v Newcastleupon-Tyne Hospitals NHS Foundation Trust [2025]
EWHC 2121 (KB) provides detailed guidance on
the legal standards that govern high-risk surgical
practice.
On 3 May 2022, during the sternotomy, the oscillating
saw transected the aorta. Severe bleeding followed,
and establishing bypass was delayed because femoral
access had not been prepared. The claimant su昀昀ered
hypoxia, resulting in severe brain injury.
The judgment explores where the line is drawn
between an unavoidable complication and a negligent
failure in preparation and communication. While
not binding in Scotland, the decision of the English
& Welsh courts provides guidance on three areas
that are central to many clinical negligence claims:
The claim was brought on three main grounds:
•
pre-operative planning and risk management;
•
the scope of informed consent; and
3. That the intraoperative use of the saw was
negligent.
•
the limits of liability where complications arise
from recognised risks despite the exercise of
reasonable skill and care.
1.
That the consent process was inadequate and
took place too late.
2. That pre-operative planning was negligent,
particularly in failing to prepare femoral vessels.
The court’s 昀椀ndings
1. Pre-operative planning
The court found a clear breach of duty in how the
operation was planned. Both experts agreed that
the claimant’s anatomy created a medium to high
risk of aortic injury. The judge held that preparing
the femoral vessels was the minimum standard of
care in such circumstances.
Factual background
The claimant had complex congenital heart disease
and had undergone several major procedures in
childhood. By 2022, at the age of 25, her condition
had deteriorated, and she required further surgery.
She was to undergo pulmonary valve replacement
and a PEARS procedure, with possible aortic
valve intervention. This would be her third “redo”
sternotomy - a procedure known to carry higher
risks.
It was concluded that this failure caused delay in
establishing bypass and materially contributed to
the brain injury, estimating that around 13 minutes
of hypoxia could have been avoided.
2. Intraoperative skill
Two issues arose before surgery:
•
The consent process: A registrar 昀椀rst quoted
a 20% mortality risk, but the consultant later
revised this to 5-10%. The main discussion with
the consultant happened only on the day of the
operation.
•
No steps were taken to expose and prepare
the femoral vessels before sternotomy, despite
scans showing the aorta was only 3mm from the
sternum.
The claimant alleged negligence in how the saw
was handled. Here, the court took a di昀昀erent view.
Expert evidence con昀椀rmed that aortic injury is a
recognised complication of redo sternotomies, even
where the surgeon exercises reasonable skill and
care. The judge agreed stating that:
“
Such a misjudgement…falls squarely within the
category of a risk of error which cannot be eliminated
entirely…”
No breach of duty was therefore established in
relation to the saw injury itself.
EXPERT WITNESS JOURNAL
28
DECEMBER/JANUARY 2025-2026
