Update | Clinical negligence: When medics aren't liable

In Lewis Clements (Widower and Administrator of the Estate of Mrs Lesley Clements) v The Royal Liverpool and Broadgreen University Hospitals NHS Trust [2012] EWHC 2335 (QB), Michael Harvey QC tried liability as a preliminary issue ?and had to consider whether there had ?been any negligent twisting of a bowel during surgery.

In May 2008 the deceased (L) was diagnosed with a colon cancer in her proximal transverse colon. An extended right hemicolectomy was performed at the defendant's Royal Liverpool Hospital on 23 June by a consultant colorectal surgeon, assisted by a senior specialist registrar. The operation involved a right hemicolectomy and the creation of an anastomosis, by the junior surgeon, between the small bowel and the transverse colon.

Post-operatively, L became unwell and ?a CT scan a week later demonstrated a small bowel obstruction, but the anastomosis appeared normal. L continued to deteriorate, developing sepsis. A ?further laparotomy performed on 5 July ?by a different surgeon (H) revealed ?multiple dense adhesions from the first operation and a twisted small bowel 6cms proximal to the anastomosis, causing an incomplete obstruction; the anastomosis was however intact.

Two further laparotomies took place ?but L continued to deteriorate with recurrent sepsis; another laparotomy revealed dilated small bowel, but no cause for the sepsis. Three further laparotomies were required. Notwithstanding these interventions, L suffered from two cardiac arrests and sustained a significant hypoxic ischaemic injury such that she required ventilation and 24-hour nursing care. She eventually died in January 2012, three-and-half years later.

The claimant's case was that the surgeons at the original surgery had negligently twisted through 180 degrees the root of the small bowel mesentery by mechanical means (i.e. torsion) before performing the anastomosis and then had failed to check the mesentery for the twist prior to closure, resulting in the small bowel obstruction 6cms proximal to the anastomosis and the subsequent avoidable complications.

The defendant's case was that no such twist had occurred during the original surgery, the obstruction had occurred during the 12 days following surgery and any twist was to the small bowel rather than the mesentery, and due to dense adhesions rather than surgical error. The defendant, however, accepted that, if the twist had occurred during the original operation as a result of surgical error, this would be a breach of duty, and that the surgical team should also have ensured there were no such twists before closing.

In determining whether any twist had occurred during the original surgery, and, if so, whether it had been in the small bowel or the mesentery and what had caused it, the judge relied upon key factual evidence given by the defendant's witnesses. H described that the 'twisting' identified at the second operation was more accurately 'flattening and folding' of the bowel caused by dense adhesions. He stated that there could not have been any twist at the mesentery as this would have been obvious and visible at surgery and, if it had been present, he would have noticed it and recorded it. Further, H said that removing the adhesions had relieved the obstruction, which was entirely consistent with the obstruction having been caused by adhesions rather than bowel or mesentery twisting. The two surgeons who had performed the original surgery also gave evidence that there was no mesenteric twist at the original surgery.

In finding for the defendant in concluding that the anastomosis had been properly formed and that there was no twist of bowel or mesentery at the time of the initial operation, the judge noted that the defendant's witnesses' evidence was 'supported by their various notes' and was 'clear and persuasive', and that 'no reasons for rejecting their evidence [had] been established'.

Post-operative death

In Jennifer Silverstone (Executrix of the Estate of Roger Silverstone, Deceased) v Professor Neil Mortensen and Oxford University Hospitals NHS Trust [2012] EWHC 2706 (QB), Thirlwell J also had to consider whether the death of a patient post-abdominal surgery had been negligently caused, and again liability was tried as a preliminary issue. The claimant was the wife of the deceased (S) and she claimed against a private surgeon (M) and the NHS Trust (O) where M had performed the surgery.

In April 2005 while in Mexico, S, aged nearly 60, developed peritonitis and widespread sepsis due to diverticulitis, such that he had required a Hartmann's procedure (removal of the sigmoid colon and fashioning of a colostomy). It had been envisaged that the colostomy would be reversed and reversal surgery took place at The London Clinic, performed by Professor Northover, in August 2005. Following the surgery, however, S became very unwell due to an anastomotic leak causing severe sepsis, such that the colostomy had to be reinstated by Northover.

M, a very experienced colorectal surgeon with an international reputation, having confirmed that he did not consider that there was any reason not to reverse the colostomy, carried out the operation in July 2006 in a private wing at O's Hospital. M reversed the colostomy but also raised an ileostomy to reduce the risk of sepsis.

On the second post-operative day, S began to deteriorate, thought to be due to blood loss, such that he required a second laparotomy. However, before this could be performed, he suffered a cardiac arrest from which he suffered profound hypoxic brain injury. Subsequent surgery performed by M revealed five litres of intra-abdominal blood but no obvious bleeding source. S died two days later, the post mortem recording that there had been intra-abdominal haemorrhage and infarcted small bowel due to band adhesions, although no source of bleeding could be found by ?the pathologists.

The claimant claimed that M negligently either had left a 10cm loop of bowel trapped under band adhesions at the end of the colostomy reversal operation or had failed to divide the adhesions, found at post mortem, which led to trapping of the bowel loop; and that it was the trapped bowel that led to the subsequent complications. In addition, the claimant claimed that O's staff had failed to examine S competently in the post-operative period and, if this had been done before 9.35pm on day two post-surgery, remedial steps would have been taken, intra-abdominal bleeding caused by sepsis would have been treated and S's death would have been prevented.

It was agreed between the parties that to leave a loop of bowel trapped under band adhesions at the first operation would be a gross surgical error.

The judge concluded that everything about M's preparation for the operation demonstrated a high standard of care and the evidence that the ileostomy had been functioning three days post-operatively and that M had not seen a trapped loop of bowel at subsequent surgery was entirely consistent with there having been no error at the operation; such that there was no breach of contract or negligence. The judge postulated that the small bowel had in fact been forced under a fibrous adhesion at the second operation, a theory posited by M in evidence. She considered that any trapping of the bowel that had occurred, if there had been any, would have occurred at the second operation M undertook, after the arrest, and thus played no part in S's collapse. Therefore, even if the adhesions should have been divided, they had no causative consequence.

The judge also concluded on the factual evidence that O's staff had acted competently in the post-operative period.

On causation of the bleeding, the judge concluded the probable explanation was from a vessel in the mesorectum, as suggested by M in evidence, rather than the claimant's case of sepsis.

Both of these cases involved events that occurred during surgery and, in reaching their conclusions, both judges relied significantly on the factual evidence of the treating surgeons (one of whom was also a defendant), which involved a degree of 'quasi expert evidence. As these two judgments demonstrate, It can often be difficult in cases of this nature, which require a close analysis of operative technique and findings at surgery, for the claimant to prove breach and/or mechanism of injury

Historic cases

The defendants also succeeded at trial in the case of Ashley Spencer v NHS North West [2012] EWHC 2142 (QB), in which Hamblen J had to consider whether the defendant's midwifery staff had been negligent in failing to suspect that the claimant was developing Group ?-haemolytic Streptococcus (GBS).

There were significant disputes of fact between the claimant's mother and the accounts of the midwives, made more complicated by the case being 18-years-old. Various issues had, however, been agreed between the parties' experts, including that: a) the claimant became infected with Early Onset GBS (EOGBS) rather than Late Onset GBS (LOGBS); b) colonisation was at the time of birth, most likely at the time of delivery; c) the claimant's initial septicaemia resulted in meningitis; d) the signs of EOGBS are non-specific but include a strange cry, becoming unsettled and poor feeding; e) clinical meningitis probably was not established when a midwife reviewed the claimant at 12:30am, on the basis that, if it had been, the claimant would not have settled shortly afterwards and his deterioration would have been more rapid; f) by 6:00am, examination would have revealed signs of illness; and, g) by 10:00-10:30am, the claimant had features of EOGB.

The main issue that the judge had to determine was whether the midwife ?should have suspected sepsis at his ?12:30am review and should therefore have called a paediatrician.

On the factual evidence, the judge found that: a) the claimant's cry was within the range of normal cries for a newborn and it was not a cry that was a feature of irritability; b) the claimant had settled; and, c) while she appeared to be feeding acceptably, the midwife could not have been expected to assess feeding in detail as the claimant had settled, such that the claimant did not, as a matter of fact, show any of the signs of EOGBS at the time of the midwifery review at 12:30am. In addition, the judge accepted the defendant's midwifery expert's view that a newborn baby being unsettled and crying intermittently was not a reason to suspect infection.

Therefore, there was no reason for the midwife to suspect at 12:30am that the claimant might be unwell such that there had been any need to call a paediatrician.

However, as to causation, if a paediatrician had been called, they would probably have given antibiotics and, if that had happened, neurological injury would probably have been avoided.