Joe Ward v Oxford University Hospitals NHS Foundation Trust

In a clinical negligence claim concerning an undetected intra-operative perforation, the court must determine on the balance of probabilities whether the injury was sufficiently visible to require detection and repair. The fact that surgeons did not observe the injury cannot, by itself, establish that it was not visible. It is nevertheless significant evidence when the injury would have been obvious if present in substantial form and the relevant area was visible throughout the procedure. The court may also assess whether the subsequent clinical course is consistent with significant leakage at the time of surgery. Where the evidence supports a smaller, initially non-leaking perforation which enlarged later, failure to detect and repair it does not amount to a breach of the applicable Bolam standard.

The claimant brought a clinical negligence claim arising from elective laparoscopic removal of a gastric band. During the operation, a gastric perforation was caused, but the experts agreed that causing it was not negligent. They also agreed that failure to identify and repair a perforation of sufficient size to be visible would have been negligent.

The perforation was discovered during a later laparotomy and measured approximately 3 cm by 2 cm. The central issue was whether it had been sufficiently large, and whether there had been visible leakage or other signs, when the original operation ended. The court considered the evidence of the operating surgeons, the claimant’s post-operative course and competing expert theories.

1. Issue and standard. The issue was whether there had been a culpable failure to identify and repair the perforation during the original operation. The parties agreed that causing the perforation was not negligent, but that failure to detect and repair a sufficiently visible perforation would have breached the applicable Bolam standard.
2. Evaluation of the evidence. It was impermissible to begin with the premise that, because neither surgeon saw the lesion, it was not there to be seen. That was a circular argument. However, the surgeons’ failure to observe the lesion had significant evidential value because the relevant part of the stomach was visible throughout the procedure and a perforation of substantial size would have been obvious.
3. The claimant’s periods of apparent clinical stability after surgery were inconsistent with significant leakage from the time of the operation. The absence of systemic inflammatory signs supported the conclusion that substantial leakage began only later. The defendant’s theory that the perforation was initially small and non-leaking, and enlarged over the following 24 hours, was more plausible on the balance of probabilities.
4. The experts’ opinions necessarily involved reconstruction and some speculation, and neither was supported by medical literature. Overall, the court was not satisfied that visible evidence of the perforation existed when the operation concluded.
5. Disposition. There was no negligent failure to identify and repair the perforation intra-operatively. Judgment was entered for the defendant. Quantum had been agreed at £150,000 if breach had been established.