Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust

JurisdictionEngland & Wales
JudgeHHJ Freedman
Judgment Date23 June 2017
Neutral Citation[2017] EWHC 1495 (QB)
Docket NumberCase No: HQ14X00234
CourtQueen's Bench Division
Date23 June 2017

[2017] EWHC 1495 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

His Honour Judge Freedman

(Sitting as a Judge of the High Court)

Case No: HQ14X00234

Between:
Lucy Diamond
Claimant
and
Royal Devon & Exeter NHS Foundation Trust
Defendant

Mr Robert Kellar (instructed by Taylor Rose) for the Claimant

Mr Henry Charles (instructed by DAC Beachcroft LLP) for the Defendant

Hearing dates: 8–12 May 2017

HHJ Freedman

Introduction

1

This is a clinical negligence claim relating to spinal fusion surgery performed by Mr Khan on 6 th December 2010; and abdominal hernia repair surgery performed by Mr Wajed on 28 th June 2011.

2

At the outset of the trial, there were three separate and distinct allegations. The first of these – namely, that it was Bolam/ Bolitho negligent to use vicryl to close the abdominal wound – fell away by the end of the trial and, indeed, Mr Kellar on behalf of the claimant expressly withdrew this allegation. In the light of the evidence which was adduced on this issue, that seemed to me to be a very sensible course to adopt. Moreover, I had expressed the view (when giving preliminary indications at the invitation of counsel) that the Claimant was highly unlikely to establish a breach of duty in relation to the choice of suture material.

3

There remain, therefore, two limbs to the Claimant's case:

i) Mr Khan's alleged failure (in response to complaints of abdominal distension) to examine the Claimant's abdomen at a review appointment on 21 st January 2011 ("first issue").

ii) Mr Wajed's failure to ensure that the Claimant had given informed consent before proceeding to repair the hernia with a mesh ("second issue").

Background

4

The Claimant, who was born on 11 th September 1971 and is, therefore, now aged 45, has an extensive history of chronic back pain. On 6 th December 2010 at the Royal Devon & Exeter Hospital ("the hospital"), Mr Khan carried out spinal fusion surgery. Unhappily, although there was some improvement in her back pain initially, in the longer term, the surgery appears to have been of limited benefit. The Claimant continues to complain of significant back pain.

5

The relevance, however, of the surgery in the context of this claim (as now advanced) is that the Claimant developed a post-operative incisional hernia. This is a very rare complication following this type of surgery, where a left-sided retroperitoneal approach is used.

6

The hernia was provisionally diagnosed on 11 th March 2011 by Dr David Cumming when reviewing the Claimant in out-patients at the hospital. He noted " significant swelling over the anterior abdomen especially on the left side". An ultrasound carried out on 4 th April 2011 confirmed this diagnosis. Meanwhile, the hernia continued to grow and become more painful (particularly around the groin) and more unsightly.

7

On 9 th May 2011, the Claimant saw Mr Wajed (General Surgeon) at the hospital. He resolved to repair the hernia, carrying out an open (as opposed to laproscopic) mesh-based repair with abdominal wall reconstruction. He explained that this would either be a large synthetic mesh or if a "tension-free" closure could not be achieved, a biological mesh would be necessary.

8

Regrettably, there followed some delay in the surgery being performed. The Claimant sought to expedite matters by visiting her GP on 1 st June 2011.

9

The surgery was eventually carried on 28 th June 2011 by Mr Wajed. He found a " large incisional hernia". The divided recti were closed and a large prolene mesh was secured with protacks.

10

Following this surgery, the Claimant continued to complain of abdominal swelling and pain. She was advised to undergo another surgical procedure involving abdominoplasty. Unfortunately, there was a delay in obtaining the necessary funding. It was not until 5 th August 2014 that the surgery was performed, this time by Mr & Mrs Jones. The mesh was removed, the hernia was repaired with a single stitch and a full abdominoplasty was then undertaken.

11

Unsurprisingly, all that the Claimant has had to endure has adversely affected her mental health, as well as her physical wellbeing. She has suffered depression and anxiety. She has not been able to resume her career as a singer although she hopes to do so in the near future. Having commenced a university degree in psychology, she has had to take two years out. She is, however, due to resume her studies in September of this year. Coupled with these matters, having established a relationship with her now partner, Andy Labram, she wanted to explore the possibility of having a second child (her first child, Rosie, is aged 14). For reasons which will emerge later in this judgment, that proved not to be possible.

First Issue: Breach of Duty

12

It is the Claimant's case that at some time in early January 2011, the swelling in her stomach became more pronounced on the left side, below her umbilicus. Prior to this, on 30 th December 2010, she had contacted her GP because of back pain and a concern about the distension of her stomach. This resulted in an admission to hospital over a period of two days. No hernia was identified or apparently suspected prior to her discharge from hospital. Accordingly, it is reasonable to assume that it was not present at that time.

13

In January 2011, the Claimant was staying at her mother's home in Devon. On 21 st January 2011, the Claimant saw Mr Khan at the hospital for her six-week post-operative check up. As she explained at paragraph 35 of her first witness statement: " I asked Mr Khan how long my stomach would be swollen as much to which he replied with a shrug of his shoulders and did not proceed to examine it".

14

Her mother confirmed that prior to this consultation with Mr Khan, she had noticed that her daughter had an " obvious deformity of the left side of her abdomen". She had encouraged her daughter to raise the matter of the abdominal swelling with Mr Khan. She was able to recall that the Claimant told her that Mr Khan seemed disinterested in this problem and merely shrugged his shoulders.

15

Mr Khan did not deny that the Claimant had mentioned the problem with her stomach: perhaps not surprisingly (and in the absence of any contemporaneous note) he could not recall one way or the other whether this problem had been flagged up by the Claimant. But he did agree that his main concern was in relation to the Claimant's back and leg.

16

As I made clear, when I gave my preliminary indications, I found the evidence of the Claimant and her mother on this issue to be persuasive. On reviewing the evidence, my assessment remains unchanged. Furthermore, Mr Charles on behalf of the Defendant in his admirably succinct written closing submissions, confirmed that the Defendant was not intending to seek to dissuade the court from its preliminary view that the Claimant had mentioned a problem with her stomach at this consultation; and that, at that time, the hernia was present.

17

Having made those factual findings, the inevitable consequence is a finding of breach of duty. The joint experts, Messrs Lee and Crawshaw, in their joint statement stated that:

" We both agree that if the court accepts the Claimant reported to Mr Khan that there was a problem with the wound then Mr Khan should have examined the wound and failure to do so would fall below acceptable standard."

Again, helpfully, Mr Charles in his written closing submissions effectively accepted my preliminary finding of a breach of duty.

First Issue: Causation

18

The Defendant does, however, dispute causation. In short, it is said that the missed opportunity to diagnose or suspect a presence of the hernia on 21 st January 2011 did not result in any delay in surgical treatment. Mr Charles relies on the chronology. Following the consultation on 11 th March 2011 he makes a point that Dr Cumming made no reference to any symptoms although he did of course describe " a significant swelling". On 6 th April 2011, the Claimant emailed Mr Khan explaining that the ultrasound scan had shown " a massive incisional hernia" and asking if he could help to accelerate the repair surgery. The appointment on 9 th May with Mr Wajed was expedited because of the Claimant's symptoms. Similarly it is the case that the surgery on the 28 th June 2011 was expedited. It is submitted that the timeline would have been the same even if the problem had been picked up at the consultation on 21 st January 2011 and, in particular, the pressure to accelerate treatment would not have occurred any earlier than in fact was the case.

19

In my judgment, logic and common sense dictate that if (as she should have been) the Claimant had been referred for an ultrasound scan after the review appointment on 21 st January 2011, the whole process would have been expedited. On the basis of what actually occurred, it is likely that the diagnosis would have been made in February, a referral to a general surgeon would have followed, with an examination in March. By early April the Claimant would have been complaining of very significant pain and discomfort. The result, on a balance of probabilities, would have been that surgery would have been undertaken approximately two months before the time when it was in fact carried out.

20

Accordingly, in my view, on the balance of probabilities, the breach of duty on the part of Mr Khan caused the Claimant to suffer additional pain and suffering over a period of approximately two months. Additionally, by reason of the delay in surgery, the hernia was permitted to increase in size although this cannot be measured in any meaningful way. I shall consider quantum at the conclusion of this judgment.

Second Issue: Breach of Duty

21

The discussion with Mr Wajed in relation to the treatment of the Claimant's hernia took place on...

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