Jacobs v King's College Hospital NHS Foundation Trust

In clinical negligence claims, the court must assess the evidence as a whole. Inherent probabilities may be considered generally and impressionistically, but the court should not assign or compare numerical probabilities where the competing events are not capable of like-for-like statistical comparison. Expert evidence assists the court but does not bind it. A claimant must prove, on the balance of probabilities, that the defendant’s treatment or subsequent care fell below the required standard. Where the evidence establishes a plausible non-negligent explanation and the claimant’s account is not sufficiently reliable, breach is not proved.

The claimant alleged that the defendant’s surgeon negligently failed to identify and repair an indirect right inguinal hernia during laparoscopic surgery on 13 July 2010. She also alleged negligent failure by a nurse practitioner to respond to a persisting lump at a postoperative consultation on 2 August 2010. The claimant underwent further surgery in September 2011, when an indirect inguinal hernia was repaired.

The central issues were whether an indirect hernia had been present and missed during the first operation, whether the claimant had reported a persisting lump at the follow-up consultation, and whether either allegation was proved on the balance of probabilities.

1. Approach to fact-finding. The court rejected an attempt to decide the case by comparing the supposed statistical likelihood of a surgeon missing an indirect hernia with the likelihood of a later recurrence. The competing possibilities were not capable of reliable numerical comparison. The court was entitled to consider inherent probabilities generally and impressionistically, but had to weigh all the evidence together.
2. Expert evidence. The experts agreed that an indirect hernia present but unrepaired at the first operation would indicate sub-standard surgery, whereas a repaired hernia that later recurred would represent a recognised complication. The court was not bound to accept expert opinion on an issue, even where the experts agreed.
3. First operation. The operation note recorded identification of the internal ring and round ligament. The evidence supported the conclusion that the peritoneum had been fully dissected and the mesh correctly positioned. The court found that any immediate postoperative lump was caused by gas and had dissipated before the follow-up appointment. It rejected the claimant’s case that an indirect hernia had remained continuously present.
4. Follow-up consultation. The court found that the claimant did not report persistence of a groin lump to the nurse practitioner on 2 August 2010. The nurse’s contemporaneous letter and evidence were inconsistent with the alleged failure to respond or refer.
5. Disposition. The claimant failed to prove that the defendant’s servants or agents had acted in breach of duty. Judgment was entered for the defendant.