Ternent v Ashford & St Peter's Hospital NHS Trust

In a professional-negligence claim, wound dehiscence following surgery does not, without more, justify an inference of negligent treatment. The claimant bears the burden of proving negligence on the balance of probabilities. The defendant need not establish a non-negligent alternative cause. If negligence and non-negligence are equally likely, the claim fails. The court must assess the whole evidential picture, including expert evidence, the known risks of surgery and the possibility that an adverse outcome occurred despite competent treatment.

The claimant underwent an emergency Caesarean section performed by a locum registrar employed by the defendant NHS Trust. Four days later, the rectus sheath completely dehisced and required resuturing. The claimant alleged that the wound had been negligently sutured and sought damages for resulting physical and psychiatric consequences.

Liability was ordered to be tried as a preliminary issue. The court considered expert evidence concerning possible mechanisms of suture failure, the speed and technique of suturing, the length of the incision, the surgeon’s qualifications and working arrangements, and other possible risk factors. The central issue was whether negligent suturing had caused the dehiscence.

1. Preliminary issue determined. The claimant failed to prove that the dehiscence was caused by negligent suturing. No finding was made on damages.
2. The applicable professional-negligence standard was that stated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: a professional is not negligent when acting in accordance with a practice accepted as proper by a responsible body of professionals skilled in the relevant field.
3. The burden remained throughout on the claimant. Applying the guidance in Rhesa Shipping S.A. v Edmunds (Popi M) [1985] 1 WLR 948, the defendant did not have to prove a non-negligent cause. If negligence and non-negligence were equally likely, the claimant had not discharged the burden.
4. The evidence did not establish the probable mechanism of failure. The absence of suture material at the right side did not prove that no suture had been present. The tensile-strength tests had no demonstrated relationship to the stresses imposed during knotting and four days inside a living patient.
5. The court rejected the suggested inferences based on the Hogston paper, the alleged speed or position of suturing, the incision length, and the surgeon’s locum status. The experts agreed that dehiscence could occur without negligence, and that incision length and the surgeon’s position did not establish substandard suturing.
6. The defendant’s surgeon was experienced and qualified. Surgery carried risks, particularly in an emergency, and the court should not lightly infer negligence from a rare adverse outcome. Judgment was therefore given against the claimant on liability.