Anna Hughes successfully represents private surgeon in High Court Clinical Negligence Claim: Court emphasises the need for experts to understand the legal test to apply

This clinical negligence claim arose out of a sleeve gastrectomy that was performed on 24^th September 2019. Initially the Claimant alleged that there had been negligence in relation to the consent process and the performance of the surgery, however these allegations were discontinued shortly before trial. At trial, the live allegations related to the follow-up care and, in particular, whether the Defendant ought to have performed a balloon dilation on 27^th November 2019. The Claimant alleged that the decision to perform the dilation was negligent, and that she ought to have been referred for conservative management of her post-surgical complications. The Defendant maintained that it had been reasonable to perform the dilation as the reported symptoms were not such that they would have been amenable to conservative treatment.

HHJ Simon, sitting in the High Court, accepted the Defendant’s decision to perform the balloon dilation was reasonable. Central to the judge’s decision was his assessment of the expert evidence in the case. HHJ Simon noted that the Claimant’s expert bariatric surgeon had made a number of concessions during the course of cross-examination which led to many of the criticisms of the aftercare falling away.

On the central issue (i.e. whether the balloon dilation had been a reasonable treatment to perform), HHJ Simon noted that the Claimant’s expert had failed to adopt a consistent approach to the medical terms he relied upon when formulating his opinion. Moreover, and somewhat fatally, the judge noted that:

“[The Claimant’s expert] was asked by Ms Hughes to explain his understanding of the Bolam test, which he had mentioned by name in his report. The answer he gave did not disclose an accurate understanding and/ or an ability to explain the test applicable in cases of alleged clinical negligence.”

The Judge went on to state:

“The inability of an expert witness to recite the Bolam test by heart is in no way determinative of the quality of their opinion.  However, in this case it was simply not clear to me that [the Claimant’s expert] had at least the basic understanding of the legal parameters within which he was being asked to express his opinion.”

By way of contrast, it was held that the Defendant’s bariatric expert had expressed his opinion in “a coherent and comprehensible manner, backing up his opinion by reference to the medical literature.”

The Judge found that there had been no breach of duty in the post-operative management of the Claimant’s condition, and so the claim was dismissed.

The case emphasises the importance of expert evidence in clinical negligent claims. In particular, it demonstrates that experts must be aware of the test that they have to apply when providing their opinions on breach of duty and must be able to articulate their opinions coherently and by reference to external sources.

Anna was instructed by Elizabeth Broadley, Partner at Clyde & Co.