THE Royal Surrey County Hospital which has been ordered to pay £2,500 damages to an 80-year-old woman who had a breast removed after being deprived of her "right to choose" whether or not to have surgery is challenging the award. A judge earlier this year said the hospital's "chaotically inadequate" procedures meant frail Kathleen Elliott was never in a position to give "informed consent" to the removal of her left breast. A letter informing her of her options - including far less radical treatment or simply "doing nothing" - had not even been posted to her by the time she went into the Royal Surrey for the operation. And Judge Reid QC told Guildford County Court that Mrs Elliott, now 86 and in a nursing home, was even asked to sign, in a "very shaky" hand, a crucial alteration to a consent form as she waited on a hospital trolley before being pushed into the operating room. Although Judge Reid accepted the operation was necessary, and Mrs Elliott would probably have given her consent even had she been informed of all the options, he said she had been "deprived of the choice which was her right". He awarded Mrs Elliott, who for many years ran the "Tuck Shop" sweet shop in Grayshott, £2,500 damages for the "upset, worry and distress" she endured. However, Ranald Davidson, for the NHS trust which runs the hospital, this week attacked Judge Reid's decision as "contrary to established law". He said the judge simply had "no power" to award the pensioner a penny after finding that the hospital's "breach of duty" had caused her no loss. The trust had been left facing a bill in excess of £100,000 after Judge Reid ordered it to pay two-thirds of Mrs Elliott's legal costs. And Mr Davidson said the NHS viewed the case as of "general importance", fearing that Judge Reid's ruling may set a precedent for the future and potentially expose hospitals to a rash of similar compensation claims. Lord Justice May, sitting with Lady Justice Hallett, today granted the trust permission to appeal against Judge Reid's ruling - but only on condition that Mrs Elliott will not be exposed to any legal bills herself and, even if it wins the case, the trust will give her an "ex gratia" payment of £2,500. The judge, sitting at London's Appeal Court, said Mrs Elliott had been "the object of a regrettable administrative bungle" and he was anxious that the appeal should cause no more distress to the pensioner, "who, in the round, at least administratively, has been badly treated". A relative of Mrs Elliott's, Elizabeth Smith, 64, said after the hearing: "She would have been a lot better off if she had never entered into this litigation". She said the after effects of the mastectomy had left Mrs Elliott, who was disabled since birth and had difficulty walking, unable to cope in her own Grayshott flat so that she had to move into a nearby private nursing home, where her financial position is precarious. In his decision earlier this year, Judge Reid said Mrs Elliott, who had suspected breast cancer, had her operation on January 5, 2001. But the January 3 letter which should have informed her of her options was not posted, by second class post, until January 9 and did not arrive at her home until January 11 - six days after the operation. On her admission to the hospital, she said she was handed a consent form to sign after she had been sitting, wheelchair-bound, for two hours in a day room. She said she "tried to read the form as best she could", but did not read read the reverse. Judge Reid accepted Mrs Elliott's "clear and consistent" evidence that she had been asked to sign an amendment to the consent form "as she lay on the trolley waiting to go into theatre". That account, he said, was borne out by her "very shaky" signature on the document. He ruled: "The problem in the case arises from the hospital's administrative failures...Had the hospital's administrative procedures not been so chaotically inadequate this situation would never have arisen. "The combination of the delay in typing, signing and then posting the letter of January 3 was at the root of the problem". Making the award, Judge Reid said: "The hospital's breach of duty deprived her of the choice which was her right. It also undoubtedly caused considerable worry, upset and distress to this elderly lady.". No date was set for the full hearing of the trust's appeal, but Mr Davidson promised on its behalf that, even if it turns out Judge Reid was wrong to award Mrs Elliott damages, the trust will make a £2,500 "ex gratia" payment to the pensioner.
