Kelly Chilton v Michael Payne

In assessing a surgeon’s post-operative duty, the court must consider the clinical context, including the nature of the procedure, the patient’s risks, and any competent specialist nursing system. There is no universal rule requiring the operating surgeon personally to review every patient within 30 days or to record a review date on the operation note. A surgeon may discharge the duty of care through a reasonable system in which trained nurses monitor the patient and refer clinical concerns to the surgeon. The Bolam standard remains subject to logical scrutiny under Bolitho. An appeal court must identify an error of law, fact, discretion, or serious procedural irregularity before interfering with the first-instance decision.

The claimant appealed against the dismissal of her negligence claim concerning follow-up after revision abdominoplasty. She alleged that the defendant surgeon should have recorded when he wished to review her, ensured a personal review within about 30 days, and arranged adequate post-operative care. The trial judge found that the hospital had a reasonable system involving specialist nurses, that the surgeon had trained and monitored them appropriately, and that no fixed period required personal review by the surgeon. The appeal raised issues of duty, breach, procedural unfairness arising from a supplementary expert statement, and factual causation.

1. Appeal dismissed. The trial judge was entitled to conclude that the defendant owed no specific duty to record the next review date on the operation note or other clinical document. The hospital’s protocols and other documents made the intended follow-up arrangements clear to the patient and nursing staff. Recording a date might have been useful, but it was not the only reasonable method of arranging post-operative care.
2. There was no hard and fast rule requiring the surgeon personally to review the patient within about 30 days. The scope and content of the duty depended on the nature and risks of the surgery, the patient’s characteristics, the patient’s progress, and the information supplied by the specialist nursing team. The surgeon’s duty was not removed by the hospital’s concurrent duties. Rather, the surgeon could discharge it through a reasonable system in which competent nurses monitored the patient, identified clinical concerns, and referred them promptly.
3. The trial judge was entitled to assess the competing expert evidence and to reject an expert’s changing evidence that personal review within three or four weeks was mandatory. The Bolam test did not require acceptance of an expert opinion merely because it was honestly held; under Bolitho, the opinion had to have a logical and defensible basis.
4. Allowing the defendant’s expert to provide a short supplementary statement after re-examination did not amount to a serious procedural irregularity. The statement clarified evidence already given and added nothing material. In any event, the appeal court was entitled to reach the same conclusion without relying on it.
5. The causation issue did not arise because the alleged duties had not been established. The appeal was dismissed.

• High Court (Administrative Court): The appeal against the Recorder’s order dated 18 November 2021 dismissing the negligence claim was dismissed.