Judgment was handed down on 31 July 2018 by HHJ Simpkiss sitting in the County Court at Canterbury in Geoffrey Kennett v East Kent Hospitals University NHS Foundation Trust, following a two-day trial concerning wound dehiscence, a rare complication following abdominal surgery. Clyde & Co were instructed by NHS Resolution on behalf of the Trust.
Factual Background
The claimant underwent incisional hernia repair on 22 August 2012. The surgeon used the standard mass closure technique. On 2 September 2012, after coughing, the claimant reported that he heard a popping noise, saw leakage from the wound, which had dehisced, and allowed part of his intestines to come out.
After admission, the claimant underwent surgical debridement and the wound was closed using the same mass closure technique and also with a Permacol mesh.
The claimant had an uneventful recovery and was discharged home on 9 September.
Allegations
The claimant relied on expert evidence from Mr John Scurr, consultant general and vascular surgeon, alleging that the first repair was carried out negligently by inadequate suturing. Mr. Scurr's opinion was also that the claimant should have been advised to lose weight before undergoing the repair.
That second allegation was withdrawn before trial.
The defendant obtained expert evidence from Mr. Meleagros, consultant general surgeon, who considered that there was no evidence that the wound closure had been carried out negligently and also that there were other reasons for dehiscence that applied in this case.
In particular, the claimant was obese, a smoker, had signs of infection and suffered from pulmonary disease and a respiratory disorder, all of which the literature showed affected wound healing and increased the risk of dehiscence (even where the mass closure technique has been used).
Judgment
The judge found that he could not find what the likely cause of the dehiscence was and – following the dicta in Ternent v Ashford & St Peter's Hospitals NHS Trust [2010] EWHC 593 (QB) – the court should not lightly infer that a surgeon had conducted a procedure negligently, particularly where the literature does not deal with the issue of negligence and where there are other plausible explanations, as in this case.
The judge found that it was improbable that the very experienced surgeon in this case would make such a basic error during a simple and routine procedure.
Whilst wound dehiscence is now a rare complication of abdominal surgery, the judge did not accept the claimant's case that it must therefore have been down to the surgeon's negligence and particularly where there were other plausible explanations.
Comments in the judgment on the claimant's expert evidence
The judge made a number of comments about Mr. Scurr's evidence, commenting that his approach was dogmatic and that he was not prepared to consider any possibility that the dehiscence could have happened for any other reason than negligence.
The judge noted that Mr. Scurr had misread the records, had based his opinion on a mistaken assumption and would not shift his view at all when presented with the actual evidence at trial.
He also went on to note that Mr. Scurr had not referred to any literature in his reports to try to justify his opinion and provided "remarkably little analysis of why he reconsiders the cause of this dehiscence was, probably, substandard medical practice". The judgment referred to Mr. Scurr's conclusion as to the cause of the dehiscence as being "entirely speculative".
Comment
Importantly, the judgment follows the decision in Ternent that clinical negligence should not be lightly inferred from the fact of an injury and particularly where there are other plausible explanations.
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