Welsh v Walsall Healthcare NHS Trust

In a clinical negligence claim, causation is determined on the balance of probabilities by comparing the actual course with the counterfactual course that reasonable care would have produced. The court must assess medical evidence in context and should not impose artificial cut-off points where the evidence shows a progressive process. Expert opinion must have a rational basis, but a court may prefer one expert’s evidence where the opposing opinion shifts materially or conflicts with agreed evidence. Claims for gratuitous care may include therapeutic emotional support and reasonable practical assistance, but ordinary family affection and reciprocal family help are not recoverable as care. Future treatment costs may be allowed in full, in part, or refused according to the proved likelihood of expenditure.

The claimant underwent gastric bypass surgery and developed an anastomotic leak, followed by severe complications, prolonged hospitalisation, ileostomy formation and reversal of the bypass. The defendant admitted several breaches, including delay in diagnosing the leak, failure to interpret a CT scan correctly and inadequate nursing care.

The principal dispute concerned causation. The court had to decide whether earlier diagnosis and surgery would probably have repaired the leak, preserved the gastric bypass and avoided the later complications. Further issues concerned the claimant’s psychiatric injury, fibromyalgia, loss of earnings, gratuitous care, future care and psychological treatment.

1. Liability and causation. The claim succeeded on the material admitted and established breaches. The common channel had been left too short and the feeding tube had been incorrectly positioned. The leak should have been identified by the evening of 5 January 2012, with urgent investigation or surgery. The relevant delay was approximately 15 hours.
2. The court rejected the argument that the inability to repair the leak on 6 January showed that repair on the previous evening would have failed. The process was progressive and there was no precise cut-off point between reparability and irreparability. On the balance of probabilities, surgery on the evening of 5 January would have successfully repaired the leak. The bypass would have remained in place, substantial weight loss would have followed, and the ileostomy, further surgery and protracted recovery would have been avoided.
3. Psychiatric and physical consequences. The claimant suffered a moderate psychiatric injury, including depression, anxiety and post-traumatic symptoms. Her pre-existing vulnerability meant that successful surgery would not have produced the dramatic and sustained improvement she anticipated. Fibromyalgia was not directly caused by surgery, but the negligent events materially amplified its effects.
4. Loss and care. The claim for loss of earnings failed because the claimant had not proved that she would probably have returned to paid employment. Applying the approach in Blamire v South Cumbria Health Authority [1993] 1 P.I.Q.R. Q1, the burden of proving the likely earnings pattern remained on her.
5. Following and applying the approach in Warrilow v Norfolk and Norwich Hospitals NHS Trust [2006] EWHC 801 (QB), reasonable therapeutic emotional support and practical assistance provided by relatives could constitute recoverable care. Ordinary family visits and help falling within normal family life were excluded. Future care was assessed using a multiplier of 30. The court allowed £7,800 for the initial psychological treatment programme and £18,000, representing half the likely cost, for the subsequent pain-management programme.
6. Damages for pain, suffering and loss of amenity were assessed at £100,000, including the applicable uplift. The parties were directed to calculate the judgment sum and agree an order.