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Briefing Note: Powell v University Hospitals Sussex NHS Foundation Trust

30 May 2023
This briefing note will set out the judgment of Powell v University Hospitals Sussex NHS Foundation Trust [2023] EWHC 736 (KB), [2023] 3 WLUK 593


The claimant was admitted to Hospital, in November 2013, to undergo revision of a left total knee replacement ('TKR'). Following the TKR, the claimant complained of pain and underwent further treatment to include DAIR (16th and 28th January 2014), washouts and the first stage of revision surgery (October 2014). An infection was diagnosed following the October 2014 surgery resulting in the claimant requiring a left above knee amputation. 

The Court noted that, in order to bring a successful claim, the claimant must prove that:-

  • A responsible body of medical practitioners would have offered her a first stage procedure in January 2014;
  • Had a first stage procedure been offered, she would have chosen to go ahead with it; and
  • The relevant infection was present, at the latest, on 28th January 2014 (when the second DAIR was performed).  


DAIR plus with the option of proceeding to prosthesis removal was offered to the claimant in January 2014. The claimant was not, however, given the choice between DAIR and first stage procedure. The Court considered that DAIR was presented as a fait accompli with the option of implant removal tagged on, if necessary. As a result, it was determined that the defendant had breached his duty of care in consenting the claimant. 


The Court then looked at factual causation, namely, whether the claimant would have proceeded with a first stage procedure had this been offered. The Court considered the claimant's history with the defendant, who had operated on her over a 10 year period. The claimant had taken the defendant's professional advice on every occasion during the previous decade and she accepted that she had 'built up a lot of trust' with him.

After considering the evidence, the Court found it 'improbable' that the claimant would have rejected the defendant's advice and insisted on first stage procedure in January 2014.  As such, it was determined that, even if the claimant been properly informed of the relevant treatment options, it would not have made any difference to her outcome.

With regard to medical causation, the Court considered when, on a balance of probabilities, the Staphylococcus epidermidis infection was introduced. If established that the infection was present in January 2014, then undergoing a first stage procedure would have eradicated the infection and the claimant would not have required an amputation. Alternatively, if it was accepted that the infection was introduced at some stage after 28th January 2014, this would have made no difference to the claimant's outcome. 

Microbiology experts were retained by the Parties and, critically, the claimant's expert failed to address whether the infection was likely to have occurred in January or June 2014. The Court preferred the defendant's expert evidence that the infection was likely to have been introduced after 28th January 2014 and would have resulted in the claimant undergoing a left above knee amputation. This provided a second and separate basis for the failure of the claimant’s action.

Overall conclusion

The Court found that, whilst the defendant was 'less than meticulous in his approach to consenting the claimant', this did not impact on the outcome and, on the balance of probabilities, the claimant would have required an above knee amputation in any event.  

Whilst the Court dismissed the claim, in summarising the Judge highlighted the deficiencies in the consent process and noted that:-

'We live in an age of informed patient consent, not as a mere technicality, or a laborious box-ticking exercise, but as a genuine commitment to and recognition of the autonomy and self-determination of patients - a stark reminder that it is their life and their body' 

For more information, please contact Laura Menary 

Further Reading