Hunt v Nottingham University Hospitals NHS Trust

In a clinical negligence claim, an operating surgeon must identify whether the upper part of the internal anal sphincter is intact before dividing its lower part during a low fistulotomy. Failure to appreciate pre-existing sphincter damage, where the available clinical information should have prompted further assessment, may constitute breach of duty.

Causation is determined on the balance of probabilities. Where competing causal theories are advanced and one is rejected, the court may accept the other where the alternatives are limited, neither is improbable, and the evidence supports that conclusion. A claimant may establish that negligence caused a colostomy where incontinence and pain jointly led to the decision, even if either symptom alone might have contributed.

The claimant, a machine operator, developed a perianal abscess after workplace exposure to severe jolting. The abscess was drained and a seton inserted. He later underwent a low fistulotomy performed by the defendant’s consultant surgeon.

The claimant alleged that the upper part of his internal anal sphincter had already been damaged and that the surgeon negligently divided the remaining lower part without identifying that damage. He subsequently developed severe pain and faecal incontinence, underwent further procedures and received a permanent colostomy. The central issues were breach of duty, the timing and cause of the sphincter damage, and whether the negligence caused the colostomy.

1. Judgment for the claimant. Liability was established and quantum was agreed, subject to liability.
2. The evidence showed that the claimant became incontinent from around the end of July 2008. His contemporaneous account, including his Department for Work and Pensions appeal, was preferred where it differed from the medical records. The records provided snapshots of his condition and did not necessarily describe his daily experience.
3. The defendant’s revised theory that postoperative sepsis progressively destroyed the upper sphincter was rejected. There was no adequate clinical, imaging, blood-test or literature evidence supporting that theory. The evidence instead pointed to damage occurring before or around the July operation.
4. The fistula was low. The surgeon was entitled to divide the lower part of the sphincter only after confirming that the upper part was intact. The earlier operation notes contained indicators that the upper sphincter might already have been damaged. The operative note did not record an adequate examination or the principal findings. The failure to appreciate the pre-existing damage and proceed with the low fistulotomy was negligent.
5. The court applied the approach stated by Ide v ATB Sales [2008] EWCA Civ 424: where there are limited competing causes, rejection of one may support acceptance of the other on the balance of probabilities, provided the remaining cause is not improbable.
6. The claimant’s incontinence and persistent pain jointly caused him to elect for a defunctioning colostomy. The defendant had not shown that he would have undergone the procedure without the incontinence. Judgment was therefore entered for the claimant. The parties were invited to agree the appropriate order and costs.