Devonport v Gateshead Health NHS Foundations Trust

In clinical negligence claims, breach is assessed by the Bolam standard, subject to the logical-analysis qualification in Bolitho. The claimant bears the burden of proving that the negligent explanation is more likely than a non-negligent explanation where competing causes exist. A court may also assess what a clinician would probably have done following an alleged omission, and whether that response would itself have been negligent.

Reasonable clinical practice is not transformed into negligence merely because communication or treatment could have been improved. An ideal course is distinct from the minimum reasonable standard. Where the evidence leaves negligence no more likely than a non-negligent complication, causation is not established.

Mrs Julie Devonport brought a clinical negligence claim against the Trust responsible for Queen Elizabeth Hospital. She alleged that negligent bowel injury during a radical hysterectomy caused a psoas abscess, ovarian inflammatory mass, ureteric obstruction, kidney failure and continuing pain. She also alleged that the gynaecological team negligently failed to coordinate with urologists before and during a later salpingo-oophorectomy.

The Trust denied breach and causation. Following a six-day trial, the court determined whether the bowel injury had occurred during the hysterectomy, whether the management of the later operation fell below the reasonable clinical standard, and whether any breach caused the claimed loss.

1. Claim dismissed. The claimant failed to establish negligence or causation in relation to either operation.
2. Clinical breach was governed by Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, subject to the qualification in Bolitho v City and Hackney Health Authority [1988] AC 232 that professional opinion must withstand logical analysis.
3. The claimant’s evidence did not establish, on the balance of probabilities, that bowel damage occurred during the hysterectomy. The competing evidence supported a non-negligent postoperative infection arising from vaginal or cervical flora, followed by an unusual psoas abscess and fistulation into the ovarian mass. The microbiology was equivocal, and the proposed mechanisms of negligent bowel injury were rejected or remained unsupported.
4. Applying Wilsher v Essex Area Health Authority [1988] 1 AC 1074, the claimant had to prove that the negligent explanation was more likely than the non-negligent explanation. She had not done so. The claim therefore failed even though a bowel injury remained possible.
5. The failure-to-liaise allegations concerning the salpingo-oophorectomy also failed. The evidence established that correspondence between the gynaecological and urological teams represented ordinary practice. A urologist’s formal attendance at a multidisciplinary meeting was unusual, and the decision to remove the ovarian mass while continuing to manage the stented ureter was reasonable.
6. Applying Bolitho, even if consultation had been required, the likely response was that the urologists would reasonably have declined to attend because their plan was to wait and see whether the ureter recovered. The operation would therefore probably have proceeded in the same way. The court noted that better communication might have been ideal, but ideal practice was not the legal standard.

First instance judgment. No prior appellate decision was stated in the judgment.