Abstract
On 18 September 2003 Mrs Irene Hirst, aged 56 years, was admitted to the Accident & Emergency Department of Scarborough District Hospital with a 24-hour history of abdominal pain and vomiting.
An emergency laparotomy was performed that evening. A strangulated right inguinal hernia was found with gangrenous small bowel and free perforation. There was small bowel content in the abdominal cavity. The small bowel was resected with anastomosis.
Over the following two weeks Mrs Hirst's condition fluctuated. Symptoms of chest infection led to X-ray and ultrasound investigation of the chest, the results of which were consistent with consolidation. Between 6 and 8 October rebound and tenderness of the abdomen were noted and distension of the abdomen became marked. A CT scan was performed which showed no fluid collection or abscess. However it was reported (wrongly as it turned out) that the appearances were likely to be related to bowel ischaemia.
On 9 October in view of the CT findings, Mrs Hirst was returned to theatre. A plastic peritonitis was found with loops of bowel plastered together. No evidence of an ongoing cause for peritonitis was discovered. No abscess cavities were found and there was no faecal or bile-stained fluid. Attempts were made to mobilize some loops of bowel but it was felt that further attempts to do so would put Mrs Hirst at risk of iatrogenic damage. The abdominal wall was closed with paraffin gauze as a laparostomy. Mrs Hirst was transferred to the intensive care unit. On 11 October the wound was redressed. The paraffin gauze was removed and a small perforation to the bowel was noted.
At review on 13 October Mrs Hirst was observed to be septic. By 15 October her renal function had deteriorated and by 16 October her condition was critical. She was returned to theatre. There was a small bowel fistula and reactive peritoneal fluid present in the pelvis. On the right side of the small and large bowel there was a matted mass and an abscess cavity was identified with 10 mL of pus. Unfortunately, the surgery did not arrest Mrs Hirst's deterioration and later that evening she died.
The Claimant's case, derived from the expert evidence of Mr Simon Patterson Brown, consultant surgeon, was that following her initial surgery on 18 September and in particular between 23 and 30 September, Mrs Hirst suffered from intra-abdominal sepsis. It was argued against the Trust that with more careful monitoring and in particular an earlier CT scan, Mrs Hirst's condition would have been diagnosed, that she would have been returned to theatre by 30 September and that she would have survived.
The Defendant relied on expert evidence from Mr Christopher Royston, consultant surgeon, and denied breach of duty and causation. The Trust's case was that following the initial surgery, Mrs Hirst developed an inflammatory reaction to the severe contamination of the preoperative peritonitis. The Defendant denied that Mrs Hirst had intra-abdominal sepsis. Consequently Mr Royston opined that it was reasonable not to perform a CT scan before 8 October and not to return Mrs Hirst to theatre at an earlier stage. The Trust's case was that Mrs Hirst's postoperative course was consistent with her preoperative presentation, and did not mandate an earlier CT scan or re-laparotomy.
With regard to causation, the Defendant argued that even if a CT scan had been carried out between 23 and 30 September 2003, it would not have shown any intra-abdominal sepsis such as to indicate re-laparotomy.
Held: the judge accepted and preferred Mr Royston's evidence that there was no evidence of sepsis that made it mandatory for a competent surgeon to have operated at an earlier stage. While Mr Royston accepted that some surgeons would have requested a CT scan earlier he also maintained that a responsible body of surgeons would not. The court therefore could not conclude that those treating Mrs Hirst were in breach of duty in failing to request a scan.
Judgment for the Defendant was entered, and given that the matter was funded by a conditional fee agreement the judge also ordered that the Claimant pay the Defendant's costs.
Hugh Preston (instructed by Harrowells LLP) appeared for the Claimant. John Whitting (instructed by Hempsons) appeared for the Defendant.
Comment
This decision is a useful application and reminder of basic principles. On paper the Defendant had a Bolam defence. This withstood Bolitho-based cross-examination. Mr Royston's evidence was balanced. While acknowledging that some surgeons would have requested an earlier scan he set out cogent and logical reasons why a responsible body of surgeons would not. The court accepted this view and so the claim failed.