High Court Rules on Surgeon's Duty of Post-Operative Care in Medical Negligence Case

Citation: [2024] EWHC 451 (Admin)
Judgment on


In the case of Kelly Chilton v Michael Payne, the High Court of Justice settled a medical negligence dispute in which the appellant, Ms. Chilton, claimed negligence against the respondent, Mr. Payne, a surgeon. The crux of the appeal rested upon the adequate provision of post-operative care and whether duties to arrange a review appointment with the respondent, or the failure to do so, contributed to the appellant’s worsened medical condition.

Key Facts

Ms. Chilton underwent revision abdominoplasty performed by Mr. Payne and subsequently suffered from an infected wound leading to hospital admission and debridement. Central to the case was the alleged failure to arrange for her post-operative review, generally expected within 30 days post-surgery. The experts agreed that had she been reviewed approximately one month post-operatively, the consequential severe medical outcomes would have been avoided. However, there was disagreement as to whether there was a breach of duty by Mr. Payne and if so, whether it caused the detriment.

The judgment referenced several legal principles:

  1. Bolam Test and the Bolitho Addendum: The judgment reiterated the standard of care test set out in Bolam, which was considered further in Bolitho. This standard permits divergence in medical opinion, where it is deemed responsible, logical, and acceptable by a body of medical professionals.

  2. Duty of Care: Mr. Payne argued that as an independent contractor, his obligations did not extend beyond performing the surgery itself, and his duty was fulfilled provided there were systems in place for timely patient review, typically by qualified nurses.

  3. Procedural Fairness: The appeal court had to consider whether procedural irregularity existed based on the admission of a post-testimony witness statement from an expert, which could have unduly influenced the judgment.

  4. Factual and Legal Causation: For a finding of negligence, there must be a breach of duty which factually and legally caused the harm suffered by the claimant.

  5. Appellate Approach: The review by the appeal court focused on whether the decision of the lower court was ‘wrong’ or ‘unjust due to serious procedural irregularity’, rather than providing fresh analysis on the merits.


The judge agreed with Mr. Payne and dismissed the claim, concluding that there was no strict requirement for Mr. Payne to see Ms. Chilton within 30 days. The practice depended on the patient’s progress and the professional judgment of the nursing team. The systems in place at the hospital, and the specialized nature of the nursing team’s abilities, were found sufficient for Mr. Payne to rely on and fulfil his continuing duty towards Ms. Chilton indirectly. The court found no breach of duty or negligence on Mr. Payne’s part.

Regarding procedural fairness, the post-testimony witness statement was admitted, and the court found no undue influence on the judgment from this. The judge deemed it a restatement of evidence given during re-examination rather than the introduction of new evidence.


The court’s decision in Kelly Chilton v Michael Payne serves to illustrate the complexities of the duty of care within the medical profession, particularly in cases involving post-operative care provided by independent surgical contractors. As the judgment stands, it clarifies the parameters governing a surgeon’s responsibility and re-affirms the principle that an established protocol and reliance on a skilled team can fulfil a surgeon’s duty of care to the patient. This case may serve as a touchstone for further discussions on the balancing act between individual clinical responsibilities and the system of care established within medical institutions.

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