England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 August 2012

Introduction

1. In this action the claimant, Mr. Lewis Clements, seeks damages arising out of the allegedly negligent surgery performed upon his wife, Mrs Lesley Clements (the deceased) on 23 June 2008 at the Royal Liverpool Hospital. The claim is brought by Mr. Clements, as Administrator of the estate of the deceased, under the Law Reform (Miscellaneous Provisions) Act 1934 claiming damages for personal injuries, loss of amenities and loss and expense sustained by the deceased from 23 June 2008 until her death three and a half years later on 17 January 2012. The claim is also brought under the Fatal Accidents Act 1976 for Mr. Clement's loss of dependency. The defendant is the National Health Service Trust with legal responsibility for the acts or omissions of the surgeons concerned.
2. On 5 January 2012 Master Roberts ordered that a preliminary issue be tried as to whether or not the defendant is liable to the claimant by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries pleaded were caused thereby; if any such injuries were so caused, the extent of the same. I heard evidence and submissions as to this issue over three days, namely on 17, 18 and 30 July 2012.

The Brief Facts

3. In May 2008 the deceased was diagnosed as having a cancer of her colon. A computerised tomography (CT) scan and a colonoscopy showed that there was a large carcinoma in the proximal transverse colon.
4. The deceased was referred to Mr. Paul Carter, a consultant colorectal surgeon. She was initially seen by him as a private patient at the Lourdes Hospital, Liverpool. He advised that an extended right hemicolectomy would be necessary to remove the tumour, and there is no criticism of this advice. He also recommended that the operation be carried out at the Royal Liverpool Hospital as a National Health Service patient, and the deceased accepted this recommendation.
5. On Monday 23 June 2008 the deceased underwent the operation (the first operation) for an extended right hemicolectomy. This was an "open" operation, and was undertaken by Mr. Paul Carter assisted by Mr. Andrew Burns, who was at the time a senior specialist registrar in general surgery specialising in colorectal surgery. Mr. Burns is now a consultant general and colorectal surgeon employed by the Mid Chester Hospital NHS Foundation Trust.
6. The operation involved, in general terms, removal of the right colon and the part of the transverse colon which was affected by the tumour, and the creation of an anastomosis (or join) between the end of the small bowel and the remaining part of the transverse colon. The defendant's evidence, which I shall consider in more detail below, is that the mobilisation of the right colon and the formation of the anastomosis were performed by Mr. Burns under the supervision of Mr. Carter. The operation lasted a little over one hour.
7. Initially the deceased appeared to be making a satisfactory recovery. On 24 June Mr. Carter wrote to the deceased's General Practitioner saying that he anticipated that she would be in hospital for 5-6 days. However, by about the night of Sunday 29/Monday 30 June her condition was deteriorating.
8. The deceased's condition continued to deteriorate during the following week. She showed signs of a severe infection. She was seen by Mr. Burns on various occasions. An abdominal x-ray on Monday 30 June showed dilated loops of small bowel possibly consistent with obstruction or a small bowel ileus. On Tuesday 1 July she was seen by Mr. Rooney, a consultant, who advised that she was seriously ill. A CT scan was requested on Tuesday 1 July to determine if the anastomosis was leaking. The CT scan report recorded,

"There is evidence of small bowel obstruction. No definite transition point is seen. The anastomosis to the left colon appears normal…."

9. Some improvement in her condition was noted on Friday 4 July. She still had tachycardia (abnormally rapid heart rate) but her blood pressure was normal. However, later that day she began to deteriorate and developed a fever, a rapid respiratory rate and a further tachycardia.
10. She was reviewed in the early hours of Saturday 5 July when it was noted that she had a rising C-reactive protein (CRP) and a significant acidosis. She was examined by Mr. Nathan Howes, a consultant surgeon, and the decision was taken to perform a laparotomy.
11. The laparotomy (the second operation) was performed by Mr. Howes on Saturday 5 July assisted by Mr. Satchidanand (a specialist registrar) and Mr. Boundouki. Mr. Howes' evidence, which I will consider in more detail below, was that he found multiple dense adhesions from the hemicolectomy operation and a partial obstruction of the small bowel approximately 6cm proximal to the anastomosis. He said that the small bowel was oedematous, extremely dusky and purple. His evidence was that the anastomosis was intact but collapsed. He said that he took down, ie disconnected, the obstructed part of the small bowel as well as the anastomosis, decompressed the small bowel, and created an ileostomy (ie so as to take the end of the small bowel into an external stoma bag). He stapled off the transverse colon. The operation took about 4 hours on account of the multiple adhesions. He decided not to close up the abdomen so that a further laparotomy could be made the next day.
12. On Sunday 6 July Mr. Howes undertook a further examination, and a yet further examination was made on Tuesday 8 July by Mr. Burns with Mr. Carter present. The abdominal wall was then closed.
13. On the night of 10/11 July the deceased's condition deteriorated with signs suggestive of recurrent sepsis. She required a significant amount of Noradrenaline in order to maintain her blood pressure. A further laparotomy was performed by Mr. Howes. The small bowel was found to be dilated but there was no evidence of ischaemia and no obvious cause for the sepsis could be found in the abdominal cavity. Mr Howes noted that she was critically ill and that her life remained at risk. There was a further laparotomy on 13 July.
14. On 17 July the deceased suffered a significant bradycardia (abnormal slowness of the heartbeat) whilst being rolled on the bed. On 18 July she suffered a cardiac arrest. She underwent cardio pulmonary resuscitation. A further laparotomy was performed that day.
15. Another laparotomy was carried out on 24 July. This revealed an 8cm area of ischaemic bowel which was thought to be the site of bleeding in the mid jejenum. This was resected. On 26 July a laparotomy revealed a laceration of the spleen, and the spleen was removed.
16. On 3 August she had a further episode of bradycardia with a period of asystole (absence of heartbeat) requiring cardio pulmonary resuscitation. Concern was expressed about her neurological condition, and by 12 August it was considered that she was suffering from a possible hypoxic brain injury.
17. On 24 August she was transferred to the London Clinic where it was confirmed that she had suffered a hypoxic ischaemic injury to her brain, and that the severe flaccid quadriparesis which she had developed was a result of critical illness neuromyopathy. A further abdominal operation was carried out on 3 November 2008 at the London Clinic.
18. The deceased was eventually discharged from the London Clinic in December 2008, but she remained an invalid requiring ventilation and 24 hour nursing care.

The claimant's case

19. The claimant's case is that the deceased's medical complications and problems following the operation on 23 June 2008, and indeed her early death on 17 January 2012, were caused by the negligence of Mr. Burns and/or Mr. Carter in their conduct of the operation. The case is succinctly pleaded in the Particulars of Breach set out in paragraph 41 of the Amended Particulars of Claim as follows:-

"The defendant, its servants or agents were negligent in that:

(i) On 23 June 2008, whilst performing a simple right hemicolectomy, Mr. Carter twisted the claimant's bowel completely through 180° before re-attaching it.

(ii) Prior to completing the surgery he failed to check that the mesentery was not twisted.

(iii) It was a requirement of basic surgical training that this check be performed and the failure to do so was negligent.

(iv) Further or in the alternative (if it be suggested that he did check), he failed to exercise any or any appropriate caution when doing so and wrongly and negligently satisfied himself that the mesentery was not twisted.

(v) He subsequently anastomosed the small bowel having twisted it through 180°.

(vi) As a result of (i) to (v) above he negligently caused the claimant's bowel to obstruct.

(vii) The claimant relies upon the operation note made by Mr. Howes on 5 July 2008…."

I interpose to note that at the time of the original pleading, before the exchange of witness statements, it was thought that the relevant surgery had been performed by Mr. Carter personally.

20. Particular reliance is placed on the record of Mr. Howes' findings and procedures at the second operation on 5 July 2008, as set out in his operation note. Under the heading "P" (for Procedures) he recorded,

"Small bowel twisted approx 6cm proximal to anastomosis, causing an incomplete obstruction.

Small bowel taken down, 180° twist to the small bowel".

21. At the commencement of the trial there was some uncertainty about the nature and location of the alleged twist, and how it was alleged to have been caused. This may have been partly because of the complexity of the various structures in the abdominal cavity and partly because of the difficulty of describing a three dimensional occurrence. During the course of the trial Mr. Burns and Mr. Howes deployed homemade models to illustrate their evidence, and both experts (Mr. Paul Durdey for the claimant and Mr. Nigel Scott for the defendant) showed diagrams or photographs, or in the case of Mr. Scott, a short DVD.
22. The small bowel is typically about 3 metres in length. At its proximal end it is joined to the duodeno-jejenum flexure. At its distal end it is joined to the lower (or proximal) end of the right colon. It is roughly circular in cross section, being typically about 3.5cm in diameter. In its natural state in the body it is folded and coiled within the lower part of the abdominal cavity.
23. The small bowel receives its nourishment, ie its arterial blood supply, from the mesentery. This is a relatively thin double layer of fatty peritoneum which is affixed at its root to the posterior of the abdomen, and then fans out so that its other end is affixed to one edge of the small bowel along the whole length of the small bowel. The length of fixture at the root of the mesentery is about 8 to 10 inches along a line running from the patient's upper left to lower right. The mesentery also contains veins, lymphatic vessels and nerves running from its root to locations along the length of the small bowel.
24. The claimant's case, as explained by Mr. Durdey at the commencement of his evidence on the second day of the trial, was that a twist of the mesentery had occurred at or in the vicinity of the root of the mesentery. It is his opinion that during the course of the operation, and prior to the formation of the anastomosis, the surgical team must have allowed the whole of the small bowel to be rotated through about 180° such that a twist of about 180° was created at the root of the mesentery. He considers that such a twist would have interfered with the blood supply to and/or the venous drainage from the small bowel, and that such an occurrence would explain all the deceased's subsequent problems and complications.
25. In his closing submissions Mr Michael Mylonas QC, counsel for the claimant, submitted that the most likely scenario was that the twist at the root of the mesentery caused a partial obstruction of the small bowel at a location 6cm proximal to the anastomosis (i.e where Mr Howes said that he had found an obstruction) by mechanical means, namely by imparting a torsion effect on the small bowel. This was not a mechanism which had been explored in evidence, although it might have been alluded to by Mr Durdey. At the time of their joint statement the experts had been considering a compromise of the blood supply as the mechanism by which a 180º twist of the mesentery would lead to small bowel obstruction. See the answer to question 3.

The defendant's case

26. The defendant's case is that no twist, whether of the bowel or the mesentery, occurred during the course of the operation on 23 June. The defendant contends that during the following 12 days a partial obstruction of the small bowel developed at a location 6cm proximal to the anastomosis and that this obstruction took the form of a twist of the bowel, as distinct from its mesentery, at this location. The defendant contends that this was the consequence of dense adhesions forming, and it places reliance upon the findings of Mr. Howes at the second operation on 5 July.
27. It is to be noted that the parties are sometimes referring to different twists. The claimant's principal contention is that there was a twist of mesentery at its root. The defendant contends that the twist recorded by Mr. Howes was a twist of the bowel, and not the mesentery, at a location close to the anastomosis. The claimant's response, amongst other things, is that it is not appropriate to describe this obstruction of the bowel as a twist.
28. The defendant accepts that if any twist did occur during the course of the operation on 23 June as a result of surgical error than this would constitute a breach of duty. The defendant acknowledges that it is the duty of a surgical team to ensure that there are no twists in the intestines or mesentery before closing up the patient.

The Issue

29. The principal issue which I therefore have to decide is whether there was any twist, either of the bowel or the mesentery, at the conclusion of the operation on 23 June.
30. The resolution of this issue is likely to depend upon, amongst other things,

(1) the factual evidence of what occurred on 23 June,

(2) the factual evidence of what Mr. Howes found on 5 July,

(3) any inferences to be drawn from the deceased's clinical history,

(4) the opinions of the experts.

31. I start by considering the evidence of the factual witnesses.

The claimant

32. The claimant gave evidence about the deceased's medical history with particular reference to events at the Royal Liverpool Hospital. In his witness statement he described a conversation which he had with Mr. Howes following the operation on 5 July 2008:

"On 5 July 2008 a second laparotomy was undertaken by Nathan Howes. After this surgery Mr Howes said that he had found a 180 degree twist close to the join. This he had taken down in order to remove the twist and put one end onto a bag and the other he had stapled off. He said that he had removed 4 x litres of fluid from Lesley's bowel and that the bowel was so inflamed that he had been unable to close off her abdomen for fear of damaging her internal organs. He said that he had left patients open before for up to 3 months but that it was vital that they didn't close Lesley's abdomen until all the swelling had gone down. He had to put the bag in as where her bowel had become so stretched when the twist was there the tissue just bruised when he handled it and therefore a join at this stage would not be viable."

In his cross examination he agreed that Mr. Howes did not say that anything had gone wrong in the first operation or that the anastomosis had been badly formed.

33. He was also referred to various passages in the medical notes which showed his concern, and indeed anger, at the problems and complications which had beset his wife. These emotions were very understandable.

Mr. Burns

34. At the time of the operation Mr. Burns was a senior (year 5) specialist registrar in general surgery specialising in colorectal surgery. He was attached to Mr. Carter's firm at the Royal Liverpool Hospital. He estimated that at that time he had taken an active part in about 70 right hemicolectomies (or extended right hemicolectomies) such that he was familiar with the standard surgical technique including all of the necessary checks. He explained that he had been taught the technique of creating an anastomosis by experienced consultants, including Mr. Carter, that he had initially assisted them, before undertaking part of and then the full anastomosis under supervision, and that eventually the full operation, including the anastomosis would be independently performed.
35. He described the method of performing the anastomosis as follows:

"Initially I check that the orientation of the small bowel and distal transverse colon is correct and there are no mesenteric twists before aligning the two divided ends of bowel in a side-to-side configuration. I also inspect the bowel to ensure it is well perfused and not under any tension. I then make a small opening in the anti-mesenteric corner (i.e. furthest away from the mesentery) of the staple lines to permit insertion of the two anvils (limbs) of the TLC 75 linear stapler. Before closing and locking the anvils, I verify the orientation of both the ileum and transverse colon with respect to the anvils to ensure they are placed against the anti-mesenteric borders of the bowel. Having carried out the final orientation check and having made sure that no mesentery has become trapped between the stapler limbs, I fire and remove the stapler. I close the enterotomy (i.e. the larger luminal opening created following application of the stapler) with a further transverse application of the TLC 75 and reinforce the staple lines including the crotch of the anastamosis by oversewing with PDS (a dissolvable suture). I then check the anastamosis to ensure it looks healthy with no signs of ischaemia (poor blood supply), tension or bleeding. I also carry out a final inspection of the small and large bowel mesenteries."

36. Mr. Burns acknowledged that since the operation took place over 3 years ago he had no detailed recollection of it, but he had been able to refresh his memory from the operation note which he had made and his own training log which he had kept as a record of all his surgical training. The latter showed that he had performed the mobilisation of the right colon and the anastomosis.
37. In his witness statement he said that he believed that if at any point during the operation the bowel had been incorrectly aligned, or if the mesentery had been twisted, he would have noticed this abnormality and discussed it with Mr. Carter who was supervising him. In his oral evidence he said that if there had been a twist of the small bowel it would have been quite obvious. He said that he would have examined the whole of the abdominal cavity and would have seen an obvious twist. He also said that he would always check after forming the anastomosis. He did not believe that he could have missed a twist if there had been one. He acknowledged that the basis of his evidence was his recollection of what he would have done as distinct from being a recollection of what he did on that occasion.
38. He described in his witness statement how Mr. Carter was a very thorough teacher who took a "hands on" approach to supervision.
39. In his log book he had made a record of the 5 July operation. His note, with my comments added in square brackets, read,

"2/52 [2 weeks] post-op. Re-laparotomy for torsion of anastomosis causing intermittent obstruction and requiring taking down of anastomosis/formation of ileostomy. No leak. Re-inspection following day. Laparastomy."

He said that this referred to his understanding at the time that Mr. Howes had found a twist of the bowel due to adhesions. He said that there was no suggestion at any time of a mistake having been made during the first operation.

40. Mr. Burns was recalled after lunch on the first day of the trial to avoid any misunderstanding about the location of the twist alleged by the claimant. He explained that if there had been a twist in the small bowel about 6cm from the anastomosis it would have been extremely obvious when he was inserting the stapling gun. If there had been a twist in the mesentery, on the axis of the mesentery, he said he would have noticed it. In his evidence either twist would have been very obvious. He explained that the width of the opening in the patient's abdomen was approximately 20cm.

Mr. Carter

41. Mr. Carter is, and was at the material time, a consultant general and colorectal surgeon. He is presently the defendant's clinical director for general surgery, a post which he has held for approximately 4 years. He has extensive experience of the extended right hemicolectomy procedure and estimates that by June 2008 he had carried out the operation more than 200 times over 20 years, using a technique which is entirely conventional.
42. Mr. Carter gave evidence of his practice when supervising. He said that he would always watch the entire operation closely to check that everything was done correctly. He explained that he would stand on the opposite side of the operating table to the surgeon who was performing the procedure (ie on the patient's left side).
43. His evidence was that a twist of the mesentery would have been a very obvious error, and he did not accept, given the role he played in the operation, that such an error was made.
44. Following the operation he dictated a note. This does not indicate anything untoward, and accords with Mr. Burns' note.
45. His evidence was that post-operatively the deceased's condition seemed to be satisfactory at first. He said that he would have seen her on the day after the operation (Tuesday 24 June) and would have seen her on Friday 27 June. He was then on holiday for a week from about 1 July to 8 July.
46. Following his return from holiday he reviewed Mr. Howes' operation note of 5 July and spoke to Mr. Howes before the laparotomy which he and Mr. Burns performed on 8 July. Mr. Carter's evidence was that Mr. Howes had told him that he had found adhesions, that the operation on 5 July had taken a long time and that the small bowel was found to be folded down on itself 6cm away from the anastomosis and tethered by adhesions. He explained that he understood that the fold itself had been running almost longitudinally along the small bowel. He said that this was not a unique occurrence and that he had seen it about a dozen times in the last 30 years.
47. Mr. Carter stated that there had been no twist in the mesentery at the time of the first operation. In his re-examination he explained that when forming the anastomosis the anastomosis is outside the patient; "it is all there in front of you". He said that if there was a twist you would be anastomising it through the mesentery. He also said that if you twisted the small bowel through 180° it would be facing in the wrong direction. This was a reference to the fact that the procedure involves aligning the two open ends of the colon and the small bowel side by side, with their ends facing the same direction. He said that the small bowel cannot twist itself.

Mr. Howes

48. Mr. Howes is, and was at the material time, a consultant surgeon at the Royal Liverpool Hospital. He was a specialist in upper gastro-intestinal surgery.
49. He was the hospital's on-call consultant surgeon on the weekend of 5/6 July, and he examined the deceased on the morning of Saturday 5 July. There had been further deterioration in her condition despite intravenous antibiotic treatment. He found her abdomen to be very distended and tender, and he recommended an exploratory laparotomy. His suspicion was that the bowel had perforated or that, in spite of the CT appearances, there was a leak of the anastomosis. He advised that there was a high chance that a colostomy would be required. He spoke to Mr. Carter by telephone as a matter of courtesy.
50. He operated later that day, assisted by Mr. Satchidanand and Mr. Boundouki. He recorded the following findings and procedures in his operation note (with his present comments added in square brackets):

"F [findings]:

Grossly obstructed small bowel.

Dusky +++ purple due to venous congestion.

? Ischaemic areas but difficult to assess.

Adhesions ++++

Free blood-stained fluid drained 500mls ? C + S [for culture and sensitivity investigation].

No evidence of perforation.

P [procedures]:

Adhesions taken down, dense ++ difficult dissection, sharp dissection

Anastomosis healthy with no evidence of leak.

Anastomosis collapsed and large bowel collapsed.

Small bowel twisted approx 6cm proximal

to anastomosis, causing an incomplete obstruction.

Small bowel taken down, 180º twist to the

small bowel.

Anastomosis taken down,

colon divided with TLC 75 and left in LUQ [left upper quadrant].

Bowel very ischaemic looking 2º [secondary to] obstruction, then

was decompressed with Savage decompressor.

Bowel returned to abdomen; 30 minute break taken.

Small bowel still discoloured but looked viable

Haemostasis

Ileostomy LIF :rectus sheath [ileostomy in left iliac fossa through rectus sheath],

Fashioned with undyed vicryl

Good blood supply."

51. His evidence was that the operation took about 4 hours on account of the density of adhesions encountered. He said that the abdomen was full of scar tissue distorting the anatomy, and that the distension of the abdomen added to his difficulty.
52. In his witness statement he described finding the obstruction to the bowel:

"We found that the obstruction of the bowel was in the ileum from a point approximately 6 cm proximal to the anastomosis. The ileum was markedly stuck with dense adhesions and I could see that these were trapping and twisting it causing an incomplete obstruction. The bowel was flattened and folded over itself along its longitudinal axis giving rise to a rotation of 180º – as shown on the attached drawing marked "NRH1". It was my firm impression that the twisting/folding of the bowel was due to the effect of the adhesions around it. I dissected the bowel away from them and found that the obstruction was relieved by taking down the adhesions."

53. The drawing which he attached was a sketch prepared by a colleague showing a location close to the anastomosis. He subsequently explained, in his third witness statement, that the bowel was flattened and folded rather than twisted in the manner commonly understood by the word twisted, and he gave an example:

"The folding of a hand is a good illustration of the way the flattened bowel was distorted. Normally, when the right hand is extended as if to shake someone's hand, the palm faces to the left and the thumb is uppermost. The longitudinal axis runs from the middle finger down the palm to the wrist. If the thumb and index finger are pushed through 180º around that axis to meet the lower surface of the hand – so that the thumb touches the edge of the little finger – the resulting folded position of the hand is the type of 'twist' I endeavoured to describe in paragraph 9 of my first statement. I confirm that this was the result of adhesions around the bowel."

54. In his evidence he presented a model and illustrated how the top part (the anti-anastomotic edge of the small bowel) had folded, or twisted, over the bottom part of the small bowel, along the longitudinal access of the small bowel. This had caused, he said, a partial obstruction of the small bowel.
55. His evidence was that the texture of the bowel was like blotting paper, and that its colour was dusky and purple. In his third witness statement he clarified what he had meant by the reference in his operation note to "dusky +++ purple due to venous congestion". He explained that the evidence of venous congestion related to the colour of the small bowel, and that he had seen no evidence of large dilated veins or any evidence of venous congestion affecting the mesentery. He said that if he had seen such evidence he would have recorded it.
56. One of the questions which I have to consider is Mr. Howes' reason for taking down (ie disconnecting) the anastomosis. Mr. Durdey, the claimant's expert, relies upon this action as an indication that there was a twist, which could only be untwisted by disconnecting the anastomosis. Mr. Howes gave his reason in his third witness statement where he said,

"….the part of the bowel proximal to the obstruction was grossly dilated and thickened and, although the adhesions that had caused the obstruction were successfully taken down, the weight of the small bowel was such that the obstruction tended to re-form. Taking account also of the patchy ischaemia, I believed that disconnecting the anastomosis was the safest option in the management of an acutely ill and very sick patient – with a view to minimizing the risks of gangrene and perforation of the bowel. I readily accept that it would have been possible to carry out decompression by making an incision in the bowel through which to insert the decompressor tube, but I preferred to take the course I believed to be less hazardous."

In cross examination he explained that it was necessary to decompress the distended small bowel. He rejected the possibility of pushing the contents up to the stomach because the small bowel was too fragile. To aspirate the contents with a Savage decompressor (as he did) would involve making an entry into the bowel. He rejected the possibility of cutting a hole in the small bowel because the subsequent suturing of the hole would leave a risk of leakage. He preferred to create an ileostomy such that the end of the small bowel formed a stoma which could be connected (outside the patient) to a stoma bag. He considered that it was sensible to remove the anastomosis, which was now redundant, to reduce the number of areas which could go wrong.

57. Mr. Howes denied that he had removed the anastomosis to undo a twist in the mesentery. He said that the mesentery was not twisted. After Mr. Durdey had given his evidence and had described the nature of the twist which he was postulating, namely a twist at the root of the mesentery, Mr. Howes was recalled to ensure that there was no ambiguity about his earlier answers. Mr. Howes said that there was no such twist at the root of the mesentery. He said that it would have been obvious and visible, and that it would be inconceivable to miss that. He described how, at the operation on 5 July, the whole small bowel was stuck together, and that he had taken it all out of the patient such that he could see the root of the mesentery. He said that if there had been a twist of the mesentery he would have noticed it and recorded it.
58. Mr. Howes also gave evidence about the conversation he had had with the claimant following the operation. He agreed that he had told the claimant that he had found a twist and that he had taken down the anastomosis, but he said that he did not "connect" the two, ie say that he had taken down the anastomosis in order to remove the twist.

Mr. Satchidanand

59. A witness statement of Mr. Satchidanand was put in evidence. The claimant did not wish to cross examine Mr. Satchidanand. In his statement Mr. Satchidanand described how he assisted Mr. Howes at the second operation on 5 July. At the time he was a specialist registrar in general surgery. He said that he had little, if any, recollection of the operation. He added that he did not remember anything about the operation being unusual other than hazy recollections that it was quite tedious due to adhesions and eventually Mr. Howes released the adhesions to remove the bowel obstruction.
60. All the factual witnesses gave their evidence in a straightforward way. There was nothing in the manner of their evidence to suggest that they were not endeavouring to give me their best recollections of events.

The Expert Evidence

61. Mr. Durdey and Mr. Scott each prepared a lengthy and comprehensive report. They helpfully summarised their views in a joint expert statement which set out their respective answers to 50 questions. They prepared a second statement commenting upon Mr Howes' third witness statement.
62. There was much common ground between them. They agreed that it was mandatory for the surgeon performing the anastomosis to check that the bowel was not twisted before joining the two bowel ends together, that a failure to check for twists before re-anastomising the bowel would be sub-standard, and that a 180° twist in the mesentery should be easily detected by an experienced surgeon (question 1, 2 and 4).
63. They agreed that it was possible for the bowel to be distorted in the manner described by Mr. Howes and that such distortion might be due to the effect of adhesions around it (Q24). They agreed that this situation would normally be described as kinking of the anastomosis by adhesions, and that it would not commonly be described as a twist (Q24). They also agreed that it was rare and unusual, but not impossible, for adhesions to cause a fold in the bowel as described in Mr. Howes' witness statement (Q27). They further agreed that if the court accepts the evidence of Mr. Howes that he found that the obstruction was relieved by taking down the adhesions before disconnection of the anastomosis then the surgery on 23 June had been carried out to an appropriate standard (Q25).
64. They agreed that the medical records confirmed that the deceased had diarrhoea between 23 June and 5 July and that this indicated a partial (as distinct from a complete) obstruction of the bowel (Q35 and 36). They also agreed that the deceased had gross distension consistent with small bowel obstruction (Q39).
65. There was an initial disagreement between them as to the reason why Mr. Howes disconnected the anastomosis on 5 July. However, following Mr. Howes' oral evidence Mr. Durdey accepted that he could not criticise Mr. Howes' decision. Mr. Scott described Mr. Howes' reason as totally reasonable.
66. There are four particular arguments which have been advanced by one or other of the experts in support of his respective viewpoint.
67. First, Mr. Durdey places reliance on the part of Mr. Howes' note reading "dusky +++ purple due to venous congestion". He considers that venous congestion of the bowel could have been caused by the twist at the root of the mesentery which he is postulating, but could not have been caused by the partially obstructed bowel that Mr. Howes has described (Q7). Mr. Scott agrees that venous congestion of the small bowel would not be a standard finding in adhesion obstruction. However, he considers that the bowel can look dusky and ischaemic due to patient illness and gross distension of the bowel secondary to obstruction (Q7). Both experts agree that ischaemia of the bowel can occur in a sick patient with poor circulation and distension of the bowel, but that this would not explain venous congestion. I shall consider this argument below in conjunction with the evidence from Mr. Howes about what he found.
68. Second, both experts have placed reliance on the deceased's post-operative clinical history. Mr. Durdey's opinion is that the deceased's post-operative course was entirely consistent with a 180° twist to the mesentery, but not consistent with what he has described as a 90° kink (based on his interpretation of the drawing attached to Mr. Howes' witness statement) (Q42 and 43). Mr. Scott's opinion is that the deceased would have become very ill within 24 to 48 hours if she had suffered a 180° twist of the mesentery (Q42). Mr. Scott considers that a 90° kink can lead to small bowel obstruction but he emphasises that that is not what he understands Mr. Howes to be describing (Q43). I shall consider this argument below.
69. Third, Mr Scott draws attention to the fact that the anastomosis would have been the most vulnerable part of the patient's abdominal anatomy. In his opinion its healthy condition on 5 July suggests that there had not been any interference with its blood supply. I shall consider this argument below.
70. Fourth, Mr. Scott relies upon the absence of any evidence of any abnormality in either the mesentery or the mesenteric veins in the report of Dr. Ramachandran on the CT scan of 1 July. In Mr. Scott's opinion the absence of vascular distortion in the small bowel mesentery on the CT scan makes it extremely unlikely that the 23 June anastomosis had produced a 180° small bowel mesentery twist. Mr. Durdey considers that the lack of obvious abnormality in the vessels on the CT scan is not unusual with a 180° twist. He considers that the classical whirl sign is only seen with a twist of 360° or greater. It is common ground that Mr. Rooney requested a CT scan on 1 July to exclude an anastomotic leak, and that Mr. Rooney was not looking for a twist in the bowel (Q37 and 38). I shall also consider this argument below.

Analysis and conclusion

71. There is clear evidence that the deceased suffered an incomplete obstruction of her small bowel. The report of the CT scan on 1 July recorded evidence of small bowel obstruction. Mr. Howes' evidence is that at the laparotomy operation on 5 July he found extensive adhesions of the small bowel and eventually located an obstruction. This was recorded in his note as the first of his findings "grossly obstructed small bowel". Although his assistant, Mr Satchidanand, had little recollection of the operation he said that he had a hazy recollection that the operation was quite tedious due to adhesions and that eventually Mr Howes released the adhesions to relieve the bowel obstruction.
72. There is evidence from Mr. Howes about the nature of the obstruction. He said that the obstruction was about 6cm proximal to the anastomosis. He described how the bowel was flattened and folded over itself along its longitudinal axis giving rise to a rotation of 180°. He said that his firm impression was that the twisting/folding of the bowel was due to the effect of adhesions around it. This description is consistent with the note which he made reading,

"Small bowel twisted approx 6cm proximal to anastomosis, causing an incomplete obstruction.

Small bowel taken down, 180° twist to the small bowel".

73. This account of the nature of the obstruction is supported by Mr. Carter's evidence of what he was told by Mr. Howes following his return from holiday. Mr. Carter's evidence was that he was told by Mr. Howes that Mr. Howes had found that the small bowel was folded down on itself 6cm away from the anastomosis and tethered by adhesions.
74. Further support for Mr. Howes' account of the nature of the obstruction comes from the training log kept by Mr. Burns. This recorded,

"2/52 [2 weeks] post-op. Re-laparotomy for torsion of anastomosis causing intermittent obstruction and requiring taking down of anastomosis/formation of ileostomy. No leak. Re-inspection following day. Laparastomy."

This accords generally with Mr. Howes' description of what he found. In particular, the note implies that the obstruction was close to the anastomosis. The reference to torsion, albeit applied to the word "anastomosis" rather than "bowel", confirms his understanding that Mr. Howes had found a twist in the vicinity of the anastomosis or its immediately adjoining bowel.

75. It is not suggested by the claimant that the twist (or fold) described by Mr. Howes occurred during the course of the first operation. Were that to have been suggested it would be a highly unlikely occurrence because this part of the patient's anatomy (the anastomosis and the adjoining small bowel) would have been directly visible to both Mr. Burns and Mr. Carter at the time of formation of the anastomosis and the closing up of the patient.
76. The claimant's case is that during the course of the first operation a twist occurred at another part of the patient's anatomy, namely at the root of the mesentery of the small bowel. There are several difficulties with this contention.
77. First, the evidence of Mr. Howes is that he found no such twist (or indeed any twist) of the mesentery. He said that it would have been obvious and visible and that it would be inconceivable to miss that. He described how, at the operation on 5 July, the whole small bowel was stuck together, and that he had taken it all out of the patient such that he could see the root of the mesentery. He said that if there had been a twist of the mesentery he would have noticed it and recorded it. His notes contain no reference to any such twist, or indeed any reference to the mesentery at all. The part of the note recording a 180° twist to the small bowel cannot, in my judgment, be treated as implying that the whole bowel had been twisted through 180° so as to induce a 180° twist at the root of the mesentery. It is also to be noted that Mr. Howes was performing the operation to ascertain the cause of the patient's deterioration. I would therefore have expected him to be looking for anything untoward, and to have recorded it.
78. Second, the evidence of both Mr Burns and Mr Carter is that no such twist (or indeed any twist) of the mesentery occurred during the course of the operation on 23 June. I have referred to their evidence above. In particular, Mr Burns was recalled to avoid any misunderstanding about the location of the alleged twist. He said that if there had been a twist in the mesentery, on the axis of the mesentery, it would have been very obvious and he would have noticed it. Mr Carter's evidence was that a twist of the mesentery would have been a very obvious error, and he did not accept, given the role he played in the operation, that such an error was made.
79. Support about the obviousness of such an error comes from Mr Scott. He was asked about how obvious it would be if the mesentery were twisted through 180° at its root. He said that it would have been very obvious, and that the terminal ileum (i.e. the end of the small bowel) would be in the wrong direction. He also considered that the possibility of such a twist was extremely unlikely because it would mean making a deliberate effort to turn the bowel to the wrong side of the abdomen. I accept that it is physically possible to create a twist of 180° (or even more) at the root of the mesentery, and indeed Mr Durdey recounted an occasion when such a twist had occurred in one of his operations but he had noticed it in time. Nevertheless the totality of the evidence was that any such twist would have been very obvious.
80. Third, Mr Durdey's opinion was that the only explanation for the operative findings on 5 July was that during the course of the operation on 23 June, whilst constructing the anastomosis, the surgeon concerned had twisted the small bowel mesentery through 180°. Mr. Durdey said, at paragraph 76 of his report, that his main reason for coming to this conclusion was that in order to untwist the small bowel Mr. Howes had to disconnect the anastomosis. Mr. Howes gave evidence of his reason for disconnecting the anastomosis, and denied that he had done so to undo a twist in the mesentery. Mr. Durdey subsequently accepted that he could not criticise Mr. Howes' reasons. Thus, if I accept Mr Howes's explanation, Mr. Durdey's main reason for his conclusion is not sustainable.

Venous congestion

81. In these circumstances I must carefully consider Mr Durdey's argument concerning venous congestion. The starting point is to consider what Mr Howes actually observed. The second step is to consider whether that observation leads to the inference that there was venous congestion.
82. Mr Howes' evidence is that he observed that the small bowel had a very dusky and purple appearance. He said that he did not see any other evidence of venous congestion such as dilated veins or any evidence of venous congestion affecting the mesentery. If he had done so he would have recorded it, and it is clear from his notes that there is no reference to dilated veins or any evidence of venous congestion of the mesentery. He accepts that he wrote in his notes:

"Dusky +++ purple due to venous congestion".

Whilst this is an indication that he regarded the appearance of the bowel as being at least consistent with the presence of venous congestion at this stage of the exercise I am concerned with the evidence of what he actually observed. Mr Howes also observed that some of the bowel looked ischaemic which he attributed to gross small bowel distension.

83. Can I properly conclude from the appearance of the bowel, as described in Mr Howes' evidence, that there was venous congestion? In my judgment I cannot. There is evidence from Mr Scott that a sick patient not uncommonly has poor perfusion of the gut, and that this reduced gut blood supply, combined with the wall pressures of a distended small bowel, would then produce the appearance of a small bowel that was dusky and purple with some areas of developing ischaemia. (Q 12). In his oral evidence Mr Scott explained that the deceased was desperately ill at the time, and that when operated upon the guts are "sacrificed" by the body such that they do not have a good blood supply, and that this would account for the dusky and purple appearance, with patchy ischaemia of the bowel. Although Mr Durdey said that he would not expect a dusky purple appearance in such a patient with a grossly distended bowel I did not understand him to be saying that this could never occur. I therefore accept the aforementioned evidence of Mr Scott. So far as the ischaemic appearance is concerned the experts agree that ischaemia of the bowel can occur in a sick patient with poor circulation and distension of the bowel (Q12).
84. Additionally, there is evidence from Mr Scott that if the mesentery had been twisted such as to cause venous congestion he would have expected dilated veins to have been observed. In his opinion the absence of dilated veins is therefore an indication that there was not venous congestion. Mr Durdey's evidence was that he would only have expected to see dilated veins if there was a complete venous obstruction. On this issue I prefer the evidence of Mr Scott. My reasoning is that Mr Durdey had previously explained how venous obstruction causes an increase in back pressure and I do not see why it is necessary to presuppose a complete venous obstruction, rather than a significant (albeit incomplete) obstruction, for dilation of the veins to occur.
85. It follows that I cannot infer from the appearance evidence of what was seen at the time of the second operation that there was venous congestion of the deceased's small bowel. Thus the premise for Mr Durdey's argument is not established.

The clinical history

86. I must describe in a little more detail the deceased's clinical history during the 12 days following the first operation.
87. As I have already mentioned the deceased initially appeared to be making a satisfactory recovery. She had suffered feelings of nausea on Wednesday 25 June, and an episode of vomiting on Thursday 26 June, but when seen by Mr Burns on Friday 27 June she was noted to be looking better (3/473). The nursing notes for 19.00 on 27 June record "... patient feeling much better"(3/785).
88. The nursing notes for Saturday 28 June and the daytime of Sunday 29 June show no significant concerns. There was a reference to a higher than normal temperature on the morning of the Saturday (37.6°C), but she was described as having had a fair day, being mobile and self-caring (3/786). The notes for the Sunday describe her having been fairly comfortable overnight. There was a complaint of nausea, but also a note referring to no other concerns having been raised by the patient. The note at 18.00 referred to the deceased remaining stable all day.
89. During the night of Sunday 29/Monday 30 June the deceased developed tachycardia. She was seen by a Senior House Officer in the early hours of Monday morning. Her tachycardia continued. An abdominal x-ray later that day showed dilated loops of small bowel possibly consistent with obstruction or a small bowel ileus. The clinical notes for that day showed a raised CRP level of 379 mg/L (3/476).
90. On Tuesday 1 July her CRP remained very high and her white cell count was 3.8 (3/478). Mr Rooney, a consultant, examined her and informed the claimant that she was seriously ill. A CT scan was ordered which found evidence of small bowel obstruction.
91. On Wednesday 2 July the deceased was described as being confused and disorientated at times (3/792) and experiencing some hallucinations (3/793). On Friday 4 July some improvement was noted in her condition (3/489) although she still had tachycardia. Later that day she began to deteriorate and developed a fever, a rapid respiratory rate and a further tachycardia. When reviewed in the early hours of Saturday 5 July she had a rising CRP and a significant acidosis. Mr Howes examined her at 9.30 am that day and decided that a laparotomy was required.
92. The subsequent history is set out in paragraphs 11 to 18 above.
93. In the light of the clinical history two questions arise, namely whether this history, particularly the early history, is consistent with the defendant's case and whether it is consistent with the claimant's case.
94. As regards the defendant's case Mr Durdey was of the opinion that the post operative history was not consistent with what he had described as a 90º twist (based on his interpretation of the drawing attached to Mr Howes' witness statement). See Questions 42 and 43. However, in the light of the evidence by Mr Howes, I think that the relevant question is whether the deceased's post operative history was consistent with the development of adhesions and an incomplete bowel obstruction of the nature described by Mr Howes. In Mr Scott's opinion the deceased's severe clinical problems fitted with the development of an adhesive obstruction. I did not understand Mr Durdey to disagree. Only if Mr Durdey can show that it was inconsistent can he rely upon the post operative history as a reason for rejecting Mr Howes' evidence. In my judgment Mr Durdey cannot show any such inconsistency. The deceased became seriously ill by about Tuesday 1 July, and her symptoms were consistent with a grossly distended bowel associated with sepsis.
95. As regards the claimant's case Mr Durdey's opinion was that the post operative course was entirely consistent with the occurrence of a 180° twist in the mesentery at the time of the first operation (Q42). Mr Scott disagreed. He thought that the deceased would have become very ill within 24 to 48 hours if she had suffered a 180° twist of the mesentery. Mr Durdey conceded that if the twist had been greater, namely 360°, he would agree with Mr Scott that the onset of symptoms would be much more rapid. In his oral evidence Mr Scott explained that in his experience if the blood supply is interrupted then normally after a day or two when you look inside the patient the bowel is dead. He acknowledged that there would be a difference in the speed of onset between an arterial and a venous obstruction. However, as he explained in his answer to question 40 of the joint statement, if there had been a 180° twist of the mesentery causing venous congestion he would have expected the deceased to have been in septic shock with venous gangrene of the bowel within about 48 hours of the operation. I recognize that the speed of onset will depend on the nature and degree of interference with the blood vessels of the mesentery, but I found Mr Scott's evidence on this aspect persuasive. If there had been a 180° twist of the mesentery causing partial occlusion of the venous drainage I would have expected the deceased's deterioration to have commenced earlier than the night of Sunday 29/Monday 30 June, being about 6½ days after the operation. Also, I would have expected parts of the bowel to have looked unviable on 5 July whereas Mr Howes has recorded that the small bowel, whilst discoloured, looked viable. I therefore consider that the clinical history lends support to the defendant's case.

The condition of the anastomosis

96. The defendant relies upon the evidence of Mr Howes that the anastomosis was found to be healthy at the operation on 5 July, as recorded in his operation note. The defendant contends that since it was the most vulnerable part of the abdominal anatomy (following its creation by surgery on 23 June) its healthy condition suggests that it has not suffered from any interference to its blood supply. The defendant's contention is that if there had been a twist to the root of the mesentery of the small bowel the blood supply to (or the venous drainage from) the anastomosis would have been expected to have been affected. Mr Scott's opinion was that the anastomosis was the weakest link and that it would be likely to suffer first if there were a twist to the root of the mesentery. He did not consider that there was any likelihood of it receiving revascularisation from the colon (which has its own, independent, mesentery) because he thought that it would take several weeks to establish a blood communication across the boundary with the colon.
97. Mr Durdey accepts that the evidence shows that the anastomosis was healthy on 5 July. He agreed that if there was a twist of the mesentery of the small bowel he would expect the anastomosis to be affected. He thought that it would be unusual if it were not affected. He raised the possibility of the anastomosis receiving a cross supply from the colon but did not put that forward as other than a possibility.
98. I accept the defendant's contention and consider that the healthy condition of the anastomosis does provide a degree of support for the defendant's case.

The CT scan

99. The defendant relies upon the absence of any evidence of a twist of the mesentery in the report of the CT scan on 1 July. There are several difficulties with this contention, and in fairness to Mr Rahman, who appeared for the defendant, this was not a point which he pressed in his closing submissions.
100. Mr Scott said that he would have expected some comment by the radiologist if there had been such a twist. I was referred to the whirl sign which can be seen in CT scans of patients who have suffered volvulus (a spontaneous twisting of the mesentery of the small bowel). An article by Bharti Khurana "The Whirl Sign" in the publication Radiology in 2003 stated:

"The whirl sign is highly suggestive of intestinal volvulus that occurs when afferent and efferent bowel loops rotate around a fixed point of obstruction, which results in tightly twisted mesentery along the axis of rotation. These twisted loops of bowel and branching mesenteric vessels create swirling strands of soft-tissue attenuation within a background of mesenteric fat attenuation, giving the appearance of a hurricane on a weather map. The whirl sign is best appreciated when imaging is perpendicular to the axis of bowel rotation."

However the literature suggested that twists greater than 180° are required to generate this appearance. Mr Durdey said that he would not necessarily expect to see a twist of 180° in the mesentery of a CT scan. He said that it is a very equivocal sign, and that it also depends on the plane at which the CT scan has been taken. Mr Scott had exhibited the aforementioned article but he had not been able to obtain another article (by Blake and Mendelson) which he understood described the presence of the sign in some patients who had undergone surgery involving bowel manipulation such as hemicolectomy.

101. Mr Scott also relied upon the absence of any evidence of any abnormality in either the mesentery or the mesenteric veins. In his opinion the absence of vascular distortion in the small bowel on the CT scan makes it extremely unlikely that there was a 180°small bowel twist. However, he admitted that he was not a radiologist and it is unclear whether either of the experts has looked at the CT scans, as distinct from the report of Mr Ramachandram.
102. In the above circumstances I consider that it would be unsafe to draw any inferences from the absence of any reference to a twist or vascular abnormality in the CT report.

The conversation between Mr Clements and Mr Howes

103. There is a difference of recollection between Mr Clements and Mr Howes as to their conversation following the operation on 5 July. Mr Clements contends that Mr Howes said that he had taken down the anastomosis in order to remove the twist. Mr Howes agrees that he told Mr Clements about finding the twist and taking down the anastomosis, but said that he did not connect the two, i.e, say that he had taken down the anastomosis in order to remove the twist.
104. On this aspect I prefer the evidence of Mr Howes for two reasons. First, if Mr Howes had said that he took down the anastomosis in order to remove the twist this would suggest that he was aware that the twist had been created before the anastomosis had been formed, i.e. that something had gone wrong in the first operation. In such circumstances it would be expected that he would have recorded this and mentioned it to Mr Burns, Mr Carter and Mr Clements. Mr Clements told me that he regarded Mr Howes as a "straight talker". Yet, it is accepted that Mr Howes did not say to Mr Clements that anything had gone wrong in the first operation or that the anastomosis had been badly formed. Mr Burns said that there was no suggestion at any time of a mistake having been made during the first operation. Mr Carter's evidence was that Mr Howes told him what he had found: there was no suggestion that Mr Carter was told that something had gone wrong.
105. Second, at the time of the conversation the potential significance of a twist would not have been apparent to Mr Clements. There would have been no particular reason for him to recollect the precise terms of the conversation as distinct from the essential gist thereof, namely that there he had found a twist and had removed the anastomosis and created an ileostomy. I understand that it was only much later that the significance of a potential twist of the mesentery came to be appreciated.

Conclusion

106. In my judgment the weight of the evidence demonstrates that the anastomosis was properly formed on 23 June 2008 and that there was no twist of the bowel or the mesentery at the time of its formation. I so find. It follows that there was no breach of duty by Mr Burns or Mr Carter on behalf of the defendant, and that the claimant has failed to establish any liability of the defendant. I accept Mr Howes's evidence that the obstruction which he found on 5 July was close to the anastomosis and was as he has described in his evidence. I find that it was caused by adhesions as he described. I accept that Mr Howes did not find any twist of the mesentery, whether at its root or elsewhere, on 5 July. I also accept that Mr Howes found that the obstruction was relieved by taking down the adhesions.
107. In reaching this conclusion I have taken account of the fact that the defendant's factual witnesses were describing events which occurred 4 years ago and that they were probably not asked to recall matters until some considerable time after the occurrence of those events. Nevertheless their evidence, supported by their various notes, was clear and persuasive, and no reasons for rejecting their evidence have been established.
108. If I had found that the anastomosis had been formed at a time when there was a twist of the bowel or the mesentery I would have found that all the deceased's subsequent problems and complications were the result of negligence by the defendant save only such problems and complications as she would have suffered in any event by virtue of, for example, (a) her pre-existing cancer, (b) a properly performed hemicolectomy and (c) her general medical condition.
109. I will hear counsel on the form of order and any other matters arising (including costs and any application for permission to appeal) on a date to be fixed. Pursuant to CPR 52.4 I extend the time for filing any appellant's notice until 4.00 pm on Friday 28 September 2012.