Baker v Epsom & St Helier University Hospitals NHS Trust

Published surgical guidance expressed in centimetres does not necessarily impose a precise measurement standard. In assessing alleged negligence in an amputation, the court must consider the clinical purpose of the procedure, the practical conditions in which measurements are made, accepted professional practice and the evidence as a whole. A departure from an indicative measurement does not establish breach where the operative aim was achieved and the evidence does not show that the result fell below the required standard. Contemporaneous medical records and reliable specialist evidence may outweigh later recollections or unsupported expert opinion.

The claimant underwent a right below-knee amputation performed by a consultant employed by the defendant NHS Trust. He alleged negligence in four respects: the length of the stump, the extent to which the fibula was cut back, beveling of the tibia, and provision of soft-tissue cover over the bone ends.

Liability and causation were ordered to be tried first. The central issue was whether the operation was performed below the standard reasonably required, having regard to the contemporaneous operation notes, later imaging, professional guidance and expert evidence.

1. Stump length. The operation notes reliably recorded an amputation approximately 16 cm from the knee joint, and the accepted measurement was 15 cm. The guidance relied upon by the claimant treated length as a matter of judgment and approximation, rather than precision. Differences between measurements were explained by the choice of reference points, imaging conditions and obliquity in the tibial cut. The stump was not shown to be negligently short.
2. Fibula. The Trust accepted that failure to cut back the fibula would breach the duty of care. The notes established that it had been cut back. The reference in Campbell to 1.2 cm was not a demonstrated mandatory standard. The evidence showed that experienced practitioners did not measure the distance precisely, and even a measurement of 0.68 cm would not itself indicate negligence because the clinical aim was to obtain adequate soft-tissue cover. The claimant failed to establish that any impingement resulted from the distance cut back.
3. Tibial beveling. The relevant requirement was to round or bevel the bone sufficiently to avoid a sharp prominence. The judge accepted the surgeon’s evidence that beveling was his invariable practice and had been carried out. The X-rays did not establish work below the required standard.
4. Soft-tissue cover. The contemporaneous notes recorded formation of a posterior muscular flap. Subsequent rehabilitation records recorded successful prosthetic fitting and no significant residual-limb or prosthesis problems. The later infection could account for changes in the stump over time. The allegation of inadequate cover was rejected.
5. The claimant’s expert evidence was materially undermined by failure to consider critical contemporaneous records and by inaccurate quotation of evidence and professional guidance. The defendant’s expert evidence was preferred. The court concluded firmly that the amputation was not carried out negligently.