Kelly Chilton v Michael Payne
[2024] EWHC 451 (Admin)
Joe Ward v Oxford University Hospitals NHS Foundation Trust
9 November 2023
[2023] EWHC 2803 (KB)
High Court
A man sued a hospital after a stomach perforation during surgery to remove a gastric band. The question was whether the hole was big enough to see during surgery. Doctors disagreed; the judge believed it was too small to see, so the man lost his case.
Key Facts
- •Claimant underwent laparoscopic gastric band removal on 30 May 2017.
- •Claimant suffered a stomach perforation during the procedure.
- •Experts agreed the perforation itself wasn't negligent, but failing to detect and repair a visible perforation would be.
- •The key issue was whether the perforation was visibly detectable during surgery.
- •Quantum was agreed at £150,000.
- •The surgery was performed by Ms Zanotti (Senior Clinical Fellow) under the supervision of Mr Sgromo (Consultant).
- •Post-operative pain led to a CT scan, which initially showed no perforation.
- •A re-look laparotomy revealed a 3x2cm perforation and peritonitis.
- •Histology suggested the perforation was 18mm but this measurement was disputed.
- •Ms Zanotti stated no complications were observed during the initial surgery.
- •Mr Sgromo's evidence was hearsay due to unavailability.
- •Experts agreed that a perforation of the size found post-operatively would have been visible during surgery if present then.
- •Experts disagreed on whether the perforation was initially visible and how it grew over 24 hrs.
Legal Principles
Bolam test for negligence: A doctor is not negligent if their actions are supported by a responsible body of medical opinion.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Civil Evidence Act 1995: Allows for the admission of hearsay evidence under specific conditions.
Civil Evidence Act 1995
Outcomes
Judgment for the Defendant.
The court found that the claimant failed to demonstrate, on the balance of probabilities, that there was visible evidence of the perforation during the initial surgery. The judge favoured the expert opinion that the perforation was not initially visible, and that the post-operative clinical course did not support the presence of a significant perforation during the initial hours.