David John Saunders v Central Manchester University Hospitals NHS Foundation Trust [23 February 2018] EWHC 343 (QB)

C seeks damages for personal injury and consequential losses arising out of alleged clinical negligence during surgery to reverse an ileostomy… in March 2012. (paragraph 1)

Shortly after that surgery, C became seriously unwell and it was discovered that his entire colon was ischaemic. The colon had to be removed. As a result, C now has a permanent ileostomy. He has suffered other unpleasant consequences… It is C’s case that the surgery was negligently performed resulting in damage to the blood supply to the bowel. (paragraph 2)

D denies liability, contending that the damage was done by a naturally occurring blood clot. (paragraph 3)

The parties are agreed that these are the only realistic explanations for the damage to C’s bowel although each one represents a very rare occurrence. I must therefore decide which is the more likely, considering all the evidence I have heard. (paragraph 4)

C was aged 60 at the time of his surgery in 2012… in 2010 when he was diagnosed with a rectal tumour. Following radiotherapy, the tumour was excised and the end of the rectum was joined to the side of the sigmoid colon. That type of anastomosis (join) carries a significant leak rate. Therefore, a defunctioning loop ileostomy was performed to divert the faeces into a bag until the anastomosis had healed. The intention was to reverse the ileostomy once it was established that healing had occurred and that there was no evidence of leakage. (paragraph 6)

C’s medical history included a myocardial infarction in 2006 and ischaemic heart disease. He had smoked for many years. He had high cholesterol and suffered from hypertension. (paragraph 7)

The surgery took place on 20 March 2012 …nothing within C’s [operation] notes to suggest that there had been any complications and he was returned to the ward, the operation having seemingly gone as expected. (paragraph 9)

Post-operatively, C appeared to be recovering well. The notes suggest that he was mobile, eating and drinking and passing urine. He had opened his bowels. All his observations were entirely normal. He was discharged from hospital on Friday 23 March. (paragraph 10)

C subsequently became very unwell. By the early hours of Sunday 25 March, he was sufficiently ill that his wife called an ambulance. On arrival at hospital he was in a shocked state with evidence of severe sepsis. (paragraph 11)

…although the onset of symptoms was superficially close in time to the surgery, the timing does not fit with an acute event during the surgery causing immediate arterial occlusion. There was no sign of an evolving problem up until C’s discharge. He had been eating and drinking and had opened his bowels by then. I cannot say that the delay in onset was so great as to exclude iatrogenic damage. However, I do consider that the symptoms came on later than would have been expected if the artery had been occluded at the time of the surgery. Four days had passed before C became significantly unwell… it seems that the onset of symptoms due to iatrogenic injury would usually have been expected to have occurred earlier. (paragraph 45)

C was at a slightly increased risk of a natural thrombotic event compared to the general population but that his risk could still be considered to be very low indeed. (paragraph 64)

This is a difficult case. C’s case is that the only plausible explanation for the damage to his colon and terminal ileum was surgical error. D contends that a natural thrombotic event shortly after the surgery is more likely. Both explanations represent extremely rare occurrences… (paragraph 74)

Analysis of the expert evidence as to aetiology by reference to the pattern of damage, the proximal relationship to the surgery and C’s anatomy and past medical history does not produce a clear answer. There are factors pointing both ways. (paragraph 76)

I am not satisfied that C has established, on a balance of probabilities, that his injury resulted from surgical damage. (paragraph 87)

Even if I had been persuaded it was more likely than not that damage occurred during surgery,… not clear as to how, in those circumstances, it could be said that the damage resulted from [surgeon] doing something wrong such that he could be said to have fallen below the standard to be expected of a reasonably competent surgeon. (paragraph 88)

On the basis of all the evidence before me, C has not established that his injury was caused by negligence… (paragraph 89

This claim therefore fails and must be dismissed. (paragraph 90)