High Court Determines No Visible Signs of Perforation in Clinical Negligence Case: Joe Ward v Oxford University Hospitals NHS Foundation Trust

Citation: [2023] EWHC 2803 (KB)
Judgment on

Introduction

The case of Joe Ward v Oxford University Hospitals NHS Foundation Trust is a notable decision in clinical negligence law heard in the High Court of Justice, King’s Bench Division. The judgment provides a keen insight into how the courts determine liability in clinical negligence claims, specifically focusing on the identification of a medical error during a surgery and the post-operative signs and symptoms that could indicate such a mistake.

Key Facts

  • The claim arose from a laparoscopic operation performed to remove a gastric band, during which the claimant suffered a perforation of his stomach.
  • It was agreed between the experts that causing the perforation was not negligent, but failing to detect and repair it intraoperatively, if visible, would constitute negligence.
  • The court was tasked with determining whether the failure to identify and repair the perforation during the operation was due to visible signs missed by the surgeons.
  • Both the claimant’s and defendant’s medical experts concurred on the cause and non-negligence of the perforation but differed on whether it was visible during the surgery.
  • The claimant’s post-operative condition fluctuated, presenting phases of relative wellness and acute pain, complicating the clinical picture.
  • Quantum was agreed at £150,000, subject to establishing breach of duty.

The case centers on the application of the Bolam test, which is derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The legal principle assesses if a medical professional’s conduct met the standard of a responsible body of opinion in that field. If the professional acted in accordance with a practice recognized as proper by a responsible body of medical professionals skilled in that particular art, the conduct is not considered negligent.

Furthermore, the case also entailed a debate about causation and the doctrine of res ipsa loquitur, an inference of negligence when an accident is the kind not usually occurring without negligence, and it was caused by an agency or instrumentality within the exclusive control of the defendant.

Additionally, the judgment of the case highlights the application of the Civil Evidence Act, specifically when considering the weight given to an absent witness’s statement that was not cross-examined.

Outcomes

The judge ultimately sided with the defendant, finding that there was no visible evidence of the perforation during the operation that should have been seen and repaired by the surgical team. The court found that:

  • Ms. Zanotti, the operating surgeon, was competent and experienced, despite the lack of direct experience in this type of surgery.
  • There was no material evidence questioning the competence of the surgeons or suggesting that the operation was performed negligently.
  • The post-operative clinical course supported the theory that significant leakage and consequent peritonitis were not established until the day after the surgery, suggesting no visible signs of a significant perforation during the surgery.
  • The Hearsay evidence of Mr. Sgromo, while given limited weight, did not support the claim of negligence.
  • Judgment was entered in favour of the defendant, as visible evidence of perforation intraoperatively had not been established.

Conclusion

In Joe Ward v Oxford University Hospitals NHS Foundation Trust, the High Court applied established principles of clinical negligence law to assess whether the surgeons breached their duty of care during a laparoscopic operation. The court carefully weighed expert testimony regarding medical practice and the post-operative clinical picture to arrive at a factual determination. Despite the unfortunate aftermath of the surgery for the claimant, the absence of visible signs of the perforation during the operation led to a verdict favouring the defense. This case highlights the complex nature of clinical negligence claims and the importance of the court’s assessment of the evidence presented before it.

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