Abstract
Mrs Ann Doyle was aged 47 years. In mid-2003 she was treated for gallbladder stones, but it was discovered that she was suffering from a stage 2 carcinoma of the gallbladder.
Accordingly, she was referred to the North Manchester General Hospital, run by the Defendant Trust, where she was placed under the care of Mr Sherlock, an extremely experienced consultant hepatico-pancreatico-biliary surgeon. On 11 September 2003, Mr Sherlock removed the tumour together with parts of the right side of the liver, because of the risk that it might be infected. In the event it was not, but the decision to perform the operation was not criticized.
Unfortunately, following the operation Mrs Doyle did not thrive. Removal of part of the liver had left a cavity in her abdomen, and although a drain had been inserted, a collection of about half a litre of fluid remained. This became infected. The infection was not fully appreciated until 19 or 20 September. An extra drain was inserted on 19 September but was not particularly effective.
Mrs Doyle steadily deteriorated and on 21 September the decision was taken to perform a further operation, undertaken that day, but Mrs Doyle died the following evening. It was common ground that the immediate cause of death was respiratory failure as a part of general organ failure caused by the abdominal infection.
The case proceeded to court because of a fundamental conflict between the expert witnesses. Professor McMahon from Leeds, on behalf of the widower, had less experience than Mr Sherlock of the operation in question, but was an expert on abdominal infection. Mr Poston, from University Hospital Aintree, on behalf of the Defendant, had performed similar operations on about 300 occasions.
With the consent of counsel, Judge Halbert arranged for both these experts to give evidence together, in order to establish clearly their points of agreement and disagreement.
Professor McMahon took the view that the treating team should have realized much earlier than they did that there was infection in the collection of fluid. Accordingly, in his opinion, effective drainage should have been achieved and Mrs Doyle would not have died. Mr Poston, however, contended that there was nothing which could have been done to achieve full drainage, and that even if hospital staff had realized the problem earlier, the outcome would have been the same.
Held: Mr Sherlock was an extremely experienced and well-qualified surgeon, but as a witness he was very defensive. Nevertheless, his integrity was not in doubt. He insisted that the drain he had inserted was working and acknowledged that the reason why an ‘urgent ultrasound’ referred to in the notes was not performed was because he had countermanded the instruction. However, that was not recorded in the notes, nor was it communicated to the family or the nursing staff.
Mr Coggins, the surgeon who performed the laparotomy on 21 September, said he first saw Mrs Doyle on 20 September. He wrote in the notes: ‘I am not convinced at this stage that there is sufficient evidence to suggest that surgery would be of benefit’.
All the Trust witnesses were manifestly telling the truth. Between the 18 and 21 September, not one but two surgeons of considerable experience in this field, Mr Sherlock and Mr Coggins, took conscious decisions not to operate. They did so in consultation and at a time when they knew they were dealing with abdominal sepsis.
Although Professor McMahon was a significantly better witness than Mr Poston, it was impossible to reject the evidence of the latter because he had performed more than 600 hemi-hepatectomy operations, about 300 of them on the right side, i.e. the side involved in this case. On the balance of probabilities, the description of the cavity given by Mr Poston was to be accepted: in other words, it would not close except as the liver regenerated. Mr Poston was highly specific in this evidence, i.e. his view applied only to right hemi-hepatectomies. That in itself suggested very strongly that he was giving specific and accurate evidence based on vast factual experience. On the balance of probabilities, therefore, the evidence of Mr Poston was to be preferred to that of Professor McMahon.
Although, with hindsight, the decisions to countermand the scan and not to operate earlier were wrong, those decisions were consciously taken and were a reasonable response to the situation. As such, they could not be said to be negligent. The claim therefore failed.
However, it was extremely unfortunate that decisions taken in respect of Mrs Doyle and the reasons for those decisions were not communicated much more effectively to her husband and son. It was strongly to be suspected from the very dignified way in which they conducted themselves throughout the hearing that, had they been told on 17 or even 20 September that there was an infected collection in Mrs Doyle's abdomen, but there was no way it could be effectively drained except by leaving an open wound which would itself be very dangerous, and that hence there was great danger to Mrs Doyle's life, they would have taken a very different view of what happened. The level of communication to the immediate family was undeniably very poor, and left an impression of lack of competence. Because of the lack of communication, what was in fact a deliberate decision not to operate was made to look like a negligent failure to consider the position at all.
Christopher Hough (instructed by Freeth Cartwright) appeared for the deceased. Charles Feeny (instructed by Weightmans) appeared for the Trust.
Comment
The judge preferred the Defendant's expert, even though he did not come across as well in the witness box as his opposite number, because he had much more relevant experience than did Professor McMahon, having performed some 300 operations precisely akin to the one which was the subject of this litigation.
The judge's comments about lack of communication are very pertinent. It is quite conceivable that this claim would never have been brought, with its resultant distress to the widower and son, and indeed to Trust staff, had the clinicians on the ground been better at communicating their decisions.