Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) (23 June 2017)

This is a clinical negligence claim relating to spinal fusion surgery on 6 December 2010; and abdominal hernia repair surgery performed on 28 June 2011. (paragraph 1)

There [are] two limbs to the Claimant’s case:

i) alleged failure (in response to complaints of abdominal distension) to examine the Claimant’s abdomen at a review appointment on 21 January 2011 (“first issue”).

ii) failure to ensure that the Claimant had given informed consent before proceeding to repair the hernia with a mesh (“second issue”). (paragraph 3)

First issue

the breach of duty… caused the Claimant to suffer additional pain and suffering over a period of approximately two months. Additionally, by reason of the delay in surgery, the hernia was permitted to increase in size although this cannot be measured in any meaningful way… (paragraph 20)

Second issue

there was a breach of duty in relation to the counselling process for the mesh repair:

i) it should have been explained to the Claimant that there was attendant upon a mesh repair certain risks, should she become pregnant in the future; and

ii) the Claimant should have been told a primary suture repair as opposed to mesh repair was possible even if there was a high risk of failure. (paragraph 28)

[Montgomery and Chester considered and not applied]

…whilst I have found that D was negligent in his pre-operative counselling, no consequences flowed and, accordingly, causation is not established. (paragraph 60)


Finally, general damages for pain, suffering and loss of amenity fall to be assessed to reflect the culpable delay in the diagnosis of the hernia. The period of the delay was approximately two months. The hernia caused the Claimant considerable discomfort and, of course, was unsightly. It will have extended in size over that period of time. [Claimant] suggested a figure of £7,500 for the pain, suffering and loss of amenity. It seems to me that that is a realistic figure and it is the sum which I award. (paragraph 61)