This is a claim in negligence arising out of complications following bariatric surgery. [1]
C was born in 1983. [4]
D was, at all material times, a Consultant Upper GI and Bariatric Surgeon. C was a private patient of D [5]
C proceeded with the sleeve gastrectomy surgery, under the care of D, on 24 September 2019 [8]
C was reviewed by the bariatric nurse on 29 October 2019, and complained of food getting stuck in her throat, even foods of a sloppy texture…. D arranged for C to undergo a barium swallow to investigate her symptoms further.[10]
The barium swallow procedure took place on 13 November 2019. The radiological report noted that: “There is intermittent mild delay or hold up of contrast at the GOJ (gastro-oesophageal junction) with transient pooling of contrast within the lower oesophagus for 10-30 seconds…no fixed stricture or stenosis is demonstrated…”.[11]
On 27 November 2019… D performed a gastroscopy on C which then led to a balloon dilatation procedure. [12]
Subsequent to the gastroscopy and dilatation C suffered a sleeve leak. She underwent a laparoscopic conversion of the sleeve to a gastric bypass, adhesiolysis (release of adhesions in the abdomen) and the insertion of a drain to the left upper quadrant of the abdomen [13]
Following conversion to a gastric bypass C continued to experience pain and symptoms of restriction and vomiting with poor oral intake, malnutrition and an inability to tolerate solid food. In September 2022 she underwent insertion of a JEJ (jejunal) feeding tube for supplementary nutrition. C has spent prolonged periods in hospital receiving dedicated nutritional care. She continues to experience significant health issues. [14]
The issues at the liability trial were:
(i) Whether there had been a breach of duty by D in failing to provide C with reasonable post-operative care following the sleeve gastrectomy;
(ii) Whether there had been a breach of duty in proceeding with the balloon dilatation;
(iii) Whether the breach(es) of duty caused injury or damage to C. [15]
C’s case in brief on the balloon dilatation was that there was no good evidence of stricture and conservative treatment measures should have been attempted and exhausted before embarking on the dilatation procedure. [17]
D’s case in brief was that C’s presenting symptoms post-operatively were suggestive of some restriction at the GOJ, rather than an issue that might be susceptible to external (dietary and/or psychological) input. This was supported by the barium swallow and then by the gastroscopy, justifying the balloon dilatation procedure. Despite cautions applied, C developed a sleeve leak, but neither the dilatation procedure, as a response, nor its performance were negligent. [18]
There is no doubting the extremely serious consequences that C has suffered as a result of the leak. The Court really does have every sympathy for her serious and continuing health challenges. The Court’s decision will come as a real disappointment, but the claim against D is simply not made out even on the more limited basis advanced at trial before me. [79]
The claim must be dismissed. [80]
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