David John Saunders v Central Manchester University Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] EWHC 343 (QB) |
| Court | Queen's Bench Division |
| Date | 23 February 2018 |
| Docket Number | Case No: C90MA066 |
[2018] EWHC 343 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester District Registry
1 Bridge Street West, M60 9DJ
Mrs Justice Yip
Case No: C90MA066
Mr Anthony Mazzag (instructed by Stephensons Solicitors LLP) for the Claimant
Mr David Eccles (instructed by Hempsons Solicitors) for the Defendant
Hearing dates: 6–9 February 2018
Judgment Approved
The Claimant seeks damages for personal injury and consequential losses arising out of alleged clinical negligence during surgery to reverse an ileostomy at Trafford General Hospital in March 2012.
Shortly after that surgery, the Claimant became seriously unwell and it was discovered that his entire colon was ischaemic. The colon had to be removed. As a result, the Claimant now has a permanent ileostomy. He has suffered other unpleasant consequences including protracted infection of the rectal stump and the need for further surgery. Unsurprisingly, this has impacted on many aspects of his life and has caused the Claimant much distress. It is the Claimant's case that the surgery was negligently performed resulting in damage to the blood supply to the bowel.
The Defendant denies liability, contending that the damage was done by a naturally occurring blood clot.
The parties are agreed that these are the only realistic explanations for the damage to the Claimant's bowel although each one represents a very rare occurrence. I must therefore decide which is the more likely, considering all the evidence I have heard.
The claim was originally listed before me for trial in relation to liability and quantum. However, recent developments in the Claimant's condition caused the parties to agree that quantum could not sensibly be determined at this stage. I also note that a secondary allegation made by the Claimant in relation to the management of the rectal stump was abandoned after the surgeon, Mr Mazarelo, had given his evidence. I am therefore only considering the issue of liability in relation to the primary allegation of surgical negligence.
The factual background
The Claimant was aged 60 at the time of his surgery in 2012. He first came under the care of Mr Felix Mazarelo, a consultant colorectal surgeon, in 2010 when he was diagnosed with a rectal tumour. Following radiotherapy, the tumour was excised and the end of the rectum was joined to the side of the sigmoid colon. That type of anastomosis (join) carries a significant leak rate. Therefore, a defunctioning loop ileostomy was performed to divert the faeces into a bag until the anastomosis had healed. The intention was to reverse the ileostomy once it was established that healing had occurred and that there was no evidence of leakage. Like most patients, that was what the Claimant wanted.
The Claimant's medical history included a myocardial infarction in 2006 and ischaemic heart disease. He had smoked for many years. He had high cholesterol and suffered from hypertension.
Mr Mazarelo was an experienced surgeon. He qualified in 1973 and was appointed to his consultant post with the Defendant in 2001. He told me that he conducted all aspects of the surgery to reverse the ileostomy himself.
The surgery took place on 20 th March 2012. Mr Mazarelo said that it was entirely straightforward. This is reflected by the short operation note made by Mr Mazarelo. There is nothing within the Claimant's notes to suggest that there had been any complications and he was returned to the ward, the operation having seemingly gone as expected.
Post-operatively, the Claimant appeared to be recovering well. The notes suggest that he was mobile, eating and drinking and passing urine. He had opened his bowels. All his observations were entirely normal. He was discharged from hospital on Friday 23 rd March.
The Claimant subsequently became very unwell. By the early hours of Sunday 25 th March, he was sufficiently ill that his wife called an ambulance. On arrival at hospital he was in a shocked state with evidence of severe sepsis. He was resuscitated with intra-venous fluids, antibiotics and oxygen. Mr Mazarelo then carried out an emergency laparotomy. He described the Claimant as being at death's door.
Fortunately, the Claimant survived the emergency surgery. There is no dispute that the large bowel was entirely ischaemic and had to be removed. A further ileostomy was fashioned. The Claimant was initially cared for on ITU. Eventually, he could be discharged from hospital, but he suffered recurrent problems which I do not need to go into at this stage.
The Claimant's case
Naturally, the Claimant has no direct knowledge of what happened during the surgery on 20 th March 2012. His case is that iatrogenic damage (damage caused by the surgery) is the only realistic and plausible explanation for the findings from the emergency laparotomy on 25 th March. The allegation is that injury was caused to a branch of the superior mesenteric artery which was the main artery supplying the blood the bowel. It is contended that such was caused by the application of excessive traction or torsion during the ileostomy reversal. Such an injury would not have happened without a lack of proper care on the surgeon's part. Therefore, it amounts to a breach of duty.
The Defendant's case
The Defendant denies that damage was done during the surgery. The Defendant's case is that the necrosis of the bowel was caused by vascular occlusion as a result of an acute arterial thrombosis, probably related to pre-existing atherosclerotic disease. This was not related to the surgery but was a naturally occurring mesenteric infarction, similar to a myocardial infarction, although much rarer.
The burden of proof
Mr Mazzag's written closing submissions began by acknowledging that:
“The Claimant bears the burden of proof throughout. It is accepted that the Defendant does not have to prove anything.”
The Claimant must prove both that damage occurred during the surgery and that such damage resulted from a lack of proper care on the part of the surgeon.
In considering the factual issue as to whether damage was done during surgery or through natural causes, care must be taken not to resort too readily to the burden of proof. In Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235, the Court of Appeal reviewed the authorities in the context of factual causation in a clinical negligence action, citing Verlander v Devon Waste Management [2017] EWCA Civ 835. I have in mind that, as Auld LJ stated at paragraph 19 of that case:
“a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence.”
Further (paragraph 24 of Verlander):
“such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice – and a respectable and useful part at that – where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
The Claimant has not asserted that the principle res ipsa loquitur applies in this case. A useful summary of the approach to cases such as this where a patient suffers injury under general anaesthetic and so cannot give evidence as to what actually happened and usually cannot call any factual witnesses to support his case is to be found in O'Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244. At paragraph 60, Jackson LJ said:
“More recent authority has tended to the view that res ipsa loquitur is not a principle of law at all. There is no reversal of the burden of proof. The so-called res ipsa loquitur cases are merely cases in which, on the totality of the evidence, the court was able to make a finding of negligence. It has always been the position that courts can make findings of fact by means of inference when there is no direct evidence of the events in issue.”
He then cited with approval the principles summarised by Brooke LJ in Ratcliffe v Torbay Health Authority [1998] PIQC P170. I will not set out that summary again here but have had regard to it.
I note too the reference to Thomas v Curley [2013] EWCA Civ 117. In that case, the claimant suffered an injury to her bile duct during an uncomplicated operation. The expert witnesses offered various possible mechanisms by which the injury may have been caused. None of these was consistent with the exercise of proper skill and care. In the absence of any satisfactory explanation from the defendant's expert or from any other quarter, the judge was entitled to conclude from all the evidence that negligence had been proved.
Applying these authorities to the facts of this case, I must first seek to resolve the factual issue as to whether the damage was done during surgery or as a result of a naturally occurring blood clot. In doing so, I recognise that I am choosing between two rare events but that they are considered to be the only plausible explanations. I must therefore examine and evaluate all the available evidence to see which is the more likely.
If I conclude that injury occurred during the surgery, I may be able to draw an inference that it was the result of a lack of proper skill and care on the surgeon's part. However, this is not a foregone conclusion. I will bear in mind that the experts agree that this was a straightforward procedure and that Mr Burgess has not put forward any mechanism by which surgical damage could have resulted despite the exercise of reasonable skill and care. The Claimant is not necessarily...
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