healthcare update - issue 12
Recent decision provides encouragement for surgeons
A judgement was handed down by the High Court recently in which the
law in relation to the burden of proof was re-stated. The decision
in Ternent v Ashford & St Peter’s Hospital NHS Trust
last month may provide some encouragement to surgeons who have
experienced adverse outcomes. The verdict was in favour of the
obstetric surgeon whose competence was called into question, as it
was held that the claimant had not discharged the burden on her to
show, on the balance of probabilities, that there had been
negligence.
The claimant's Caesarean section wound ruptured four days after
surgery, and the issue to be determined was whether or not the
rupture was caused by the negligent suturing of the rectus
sheet.
The claimant and her expert obstetrician argued that the
suturing must have been of poor quality. The claimant’s expert said
that a stitch at the end of the incision had probably become untied
because:
- The incision was longer than you would expect (23cm instead of
15cm)
- The sutures were placed too widely along the length of the
incision
- The surgeon’s technique was unusual in that he placed a stay
stitch at one end of the incision, cut the filament and then began
suturing from the opposite end before tying a knot to the first
stitch to finish off
- The surgeon was standing on the wrong side – he is right hand
dominant but stood on the left, so (on the claimant’s case) would
have run out of suture material to tie a good knot to finish
off
- The suturing was done in a hasty manner – the claimant’s mother
gave evidence to this effect. She was a former nurse and was
present at the birth
- A second obstetric surgeon who repaired the wound found no
suture material at the end of the incision
- Suture material is strong and therefore unlikely to snap (there
was no evidence that the tissue gave way or that the knot was
pulled through it)
- Dehiscence is a rare adverse outcome.
However, even though the defendant trust was not able to say
that it was more likely that the suture material snapped than the
knot became untied, at trial, it was successful, firstly, because a
number of strands of the claimant's case fell away.
It was conceded that nothing turned on the length of the
incision, that the sutures were not placed too far apart (1cm),
that the surgeon’s technique was an accepted practice, and he was
experienced, having performed hundreds if not thousands of
Caesarean sections. He had had only one previous occurrence of
wound dehiscence, relating to an hysterectomy rather than a
Caesarean section.
Secondly, on hearing the evidence, it was not accepted by the
judge that the suturing was done in a hasty manner. He was not
swayed by the claimant’s mother whose experience of suturing
Caesarean section wounds was limited. He also found that the
surgeon probably stood on the right side, which was his usual
practice. Also, and importantly, he found that the fact suture
material was not found at the end of the incision which had
re-opened did not amount to evidence of the absence of the stay
stitch. It could not be inferred that the stitch had become untied.
The purpose of the operation to repair the wound was just that, and
the surgeon involved at that stage did not waste time looking for
suture material.
The judge concluded that as the surgeon in question was
experienced and qualified to carry out the Caesarean section, and
as there was no evidence that his operative technique was poor, it
could not be inferred that there had been negligence from the
evidence produced by the claimant.
On reviewing the judgement, it is easy to suggest that the
claimant's expert obstetrician simply over-extended himself in
looking to draw conclusions that on cross-examination and thorough
scrutiny could not be substantiated. In spite of the fact that a
rare adverse outcome befell the claimant, she was not able to prove
negligence on the balance of probabilities. Surgeons facing claims
following an adverse outcome may therefore be encouraged that a
principled approach can be taken in defending their actions.
talk to us
save to PDF
The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.