Clements v The Royal Liverpool and Broadgreen University Hospitals NHS Trust

In a surgical negligence claim, the claimant must prove that the alleged operative error occurred and caused the pleaded injury. A surgical team must check that the bowel and mesentery are correctly orientated and free from twists before completing an anastomosis and closing the patient. Evidence of a later bowel obstruction does not, without more, establish that a twist was created during the original operation. The court may distinguish an adhesive fold or kink near an anastomosis from a mesenteric twist at its root. The evidence must be assessed as a whole, including operative findings, the clinical course and expert evidence.

The claimant, as administrator of the deceased’s estate and as a dependant, sought damages following an extended right hemicolectomy performed at the Royal Liverpool Hospital. The claims were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

A preliminary issue concerned whether the defendant’s surgical team had negligently twisted the bowel or mesentery during the operation on 23 June 2008, and whether that error caused the deceased’s subsequent obstruction, complications and death. The defendant contended that the obstruction found on 5 July resulted from postoperative adhesions rather than negligent surgery.

1. Claim dismissed. The claimant failed to establish that the bowel or mesentery was twisted when the anastomosis was formed. There was consequently no breach of duty and no liability on the part of the defendant.
2. The court accepted that the surgical team had a duty to check the orientation of the bowel and mesentery and to ensure that there were no twists before completing the anastomosis and closing the patient. The experts agreed that a 180-degree mesenteric twist should have been readily detectable by an experienced surgeon.
3. The operative findings on 5 July were interpreted as showing an incomplete obstruction approximately 6 cm from the anastomosis. The bowel had been flattened and folded along its longitudinal axis by dense adhesions. The obstruction was relieved by taking down those adhesions. This was materially different from a twist at the root of the mesentery.
4. The court accepted the evidence of the surgeons and the defendant’s expert. The absence of a recorded mesenteric twist, the healthy anastomosis, the delayed clinical deterioration and the absence of persuasive evidence of venous congestion supported the defendant’s case. The CT report was treated as unsafe evidence from which to infer either the presence or absence of a twist.
5. The court found that the anastomosis had been properly formed and that the postoperative obstruction was caused by adhesions. Had an operative twist been proved, the court would have found the subsequent problems and complications caused by negligence, subject to complications attributable to the pre-existing cancer, properly performed surgery or the deceased’s general medical condition.
6. The court reserved consequential matters, including costs and any application for permission to appeal. The time for filing an appellant’s notice was extended under CPR 52.4.