Ternent v Ashford & St Peter's Hospital NHS Trust [2010] EWHC 593 (QB)

[2010] EWHC 593 (QB)Case No TLQ/09/0734
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/03/2010
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
KIRSTY ELIZABETH TERNENTClaimantASHFORD & ST PETER'S HOSPITAL NHS TRUSTDefendant
Mr Paul Dean (instructed by Field Fisher Waterhouse LLP) for ClaimantMr Andrew Kennedy (instructed by Barlow Lyde & Gilbert LLP) for DefendantHearing Hearing dates: 15, 16 and 17 March 2010
Judgment
[1]The Claimant’s first baby was born on 25 October 2005 at St Peter’s Hospital in Chertsey, Surrey (“the Defendant”). The baby was delivered in good health by urgent Caesarean Section at 03.19 hours. He weighed 6lbs and 4 ozs. Mr Habeeb was the surgeon. On 28 October the Claimant suffered abdominal pain. On 29 October, the fourth day after the operation and shortly before she was to be discharged home, she suffered dehiscence of her wound (it re-opened). She was immediately operated on again, to resuture the wound. Mr Taylor was the surgeon on this occasion. He found that complete dehiscence of the rectus sheath had occurred. That operation was successful. She was allowed home on 3 November.

THE CLAIM

[2]This action was commenced on 20 May 2008. In it the Claimant’s main claim is that Mr Habeeb was negligent in that he failed to suture the rectus sheath adequately, and it was this that caused the breakdown of the wound. She claims that as a result, she suffered pain, injury and losses. The Claimant also advances two other claims. The second claim is that the staff of the hospital (not, of course, Mr Habeeb) were negligent in that they left a needle in her bed. The person who was injured by the needle was the nurse who found it, not the Claimant. The Claimant’s claim in respect of the needle and the lack of cleanliness of the ward is not for physical injury, but for the distress she suffered from the discovery of the needle, and the state of the ward.[3]The damage claimed includes the distress the Claimant suffered in having to undergo the second operation. She also claims that she has developed neuropathic pain and suffers from Complex Regional Pain Syndrome, and that as a result of all these events she has developed Post Traumatic Stress Disorder and depression. This in turn has resulted in her being unable to care for her son as she would have wished, and in her being unable to return to work.[4]The main issue in the case is whether Mr Habeeb was negligent in suturing the wound. The Defendant denies that he was negligent.[5]As to the second claim, there is no dispute that a needle was found in her bed. Dr Bahmaie, the Consultant, described this as “shocking and absolutely inexcusable”, and the Defendant has apologised for this. The issue in the case in respect of this matter is that the Defendant denies that the Claimant suffered any physical or psychiatric injury as a result of it.[6]The third claim is that the Defendant failed to keep the ward clean. As to the cleanliness of the ward, the Defendant denies that it was so deficient as to amount to any breach of duty of care owed to the Claimant, and it denies causation and damage.[7]No evidence was adduced before me by the Defendant on either of the second or third claims. The evidence of the Claimant included her evidence on these two claims. But it was not relevant to the issue I have to decide.

THE PRELIMINARY ISSUE

[8]On 20 July 2009 the Master ordered that liability be tried as a preliminary issue. That is the sole issue that I have tried. I have not heard any evidence on damages, and I say nothing about that part of the claim, except that the Defendant denies that the Claimant suffered any significant additional pain as a result of the second operation, or that any symptoms she may have developed were the result of that second operation.[9]Counsel have agreed the following formulation of the issue that I have to decide: “Whether the dehiscence of the Claimant’s abdominal wound resulting in the herniation of her small bowel on 29 October 2005 was caused by the negligent suturing of her rectus sheath by Mr Habeeb when repairing the caesarean section performed on 25 October 2005, or not”.[10]The legal standard for professional negligence is set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587. It is that a professional person “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.[11]The burden of proof lies on a claimant. The standard of proof is the balance of probabilities, that is to say, whether negligence is more likely than not. I bear in mind the guidance of Lord Brandon in Rhesa Shipping S.A. v. Edmunds ("Popi M") [1985] 1 WLR 948 951 (where the claimant shipowners were suing insurers for the loss of theirs ship): ... two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case. The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.[12]What applied to the underwriters in that case applies to the Defendant in the present case. The Defendant does not have to establish that there was a non-negligent cause of the wound breakdown. If negligence and non-negligence are equally likely, then the burden is not discharged.

THE WITNESSES

[13]Mr Habeeb gave evidence. He had no recollection of the events involving the Claimant. This is understandable. He had by that date performed hundreds if not thousands of deliveries by Caesarean Section. He had first been informed that there was a complaint by the Claimant shortly before he made his witness statement in April 2009. That was over three years after the events in question. Until then he had regarded this one as routine. Accordingly he relied on the notes as to what he had done at the time.[14]Mr Habeeb is now a Locum Consultant in Obstetrics and Gynaecology at the same hospital in the Midlands at which he held a more junior post in October 2005. The following are some extracts from his CV. He was educated in Nigeria and obtained his MB in Cairo in 1980. He held posts in Nigeria in the period 1981 to 1988, and in England in the period 1989 until the present time. From October 2004 (that is at the time of the events here in question) he was an Associate Specialist in Obstetrics and Gynaecology two NHS Trust hospitals in the Midlands. He worked full time, but was not on call on evenings or weekends. His responsibilities included the supervision and teaching of junior members of the medical staff. In 1993 he became a Member of the Royal College, and in 2005 he became a Fellow. In January 2008 he obtained his Certificate of Completion of Specialist Training. Mr Habeeb was working for the Defendant as a Locum Registrar when he operated on the Claimant.[15]Mr Taylor is now a Consultant Obstetrician and Gynaecologist employed by another NHS Trust. At the time in question he was employed by the Defendant as an Obstetric Specialist Registrar. He had limited recollection of 29 October 2005 when he came to make his statement in October 2009.[16]I also heard evidence of fact from the Claimant, her husband and her mother, Mrs O’Brien. All three were permitted to be present in the theatre on 25 October. This was exceptional. Normally only one relative is permitted. Mrs O’Brien is a retired nurse. All three gave evidence as to what they recall seeing in the theatre.[17]The expert evidence was from Mr Brunksill called by the Claimant and Mr Tuffnell called by the defence. Both of these are distinguished consultants with expertise in obstetrics and gynaecology.[18]Finally, there are two reports from Professor Hainsworth, who is a specialist in forensic materials engineering. She had conducted tests to establish the tensile strength of sutures of the kind used by Mr Habeeb. She was not required to attend for cross-examination, and I received her evidence in writing.

THE UNDISPUTED FACTS

[19]The issue that I have to decide relates to events which occurred in the period of not more than 23 minutes between 0319 and 0342 on 25 January. The evidence of other events, before and after, is relevant in so far as it enables me to draw inferences as to what is likely to have happened in those 23 minutes. I shall limit my recital of the events to those which are relevant, while bearing in mind the full story as it has been told to me by the Claimant and her family.[20]The Claimant was aged 32 when her baby was born. She was 5 ft 3 ins in height and before pregnancy she weighed 10 stone (63kg). On 14 April she weighed 69kg. On 26 September she weighed 82 kgs. She was admitted on 24 October.[21]There were nine doctors and other medical staff in the theatre, including Mr Habeeb, in addition to the Claimant, her husband and mother.[22]A printed form is prepared by the Defendant for recording Caesarean Section procedures with boxes to be ticked. These offered a choice of four categories of indication:(1) “immediate threat to the life of the woman or foetus”(2) “maternal or fetal compromise which was not immediately life threatening”(3) “no maternal or fetal compromise but needs early delivery” and(4) “Delivery Timed to suit mother and staff”. The box for category (2) was ticked.[23]In addition it is recorded that the presentation of the baby was “Cephalic cord round neck” and the position was OP. This form also records that Monocryl was the type of suture used for the sheath. That is a suture which dissolves in the body over a period of time.[24]This printed form is two sided. When the papers were sent to the experts only the front side was copied. Observations were made on the apparent failure of Mr Habeeb to record all the information that he ought to have recorded. At the trial the original was produced in court, and it became common ground that those observations had been based on a misunderstanding. He had recorded all that he was required to record.[25]Mr Habeeb made a transverse Pfannenstiel incision which was 23cms in length.[26]On 25 October there are the following relevant entries in the notes: i) 0240 Mr Habeeb recorded the facts and observations that led to his decision to operate. These included that the baby was in the Occipito Posterior (“OP”) position. ii) 0255 “to theatre” iii) 0317 “knife to skin” iv) 0319 “birth” v) 0342 the last entry on the anaesthetists’ record vi) 0400 “return from theatre” vii) 0750 “wound oozing +++ pressure dressing applied … relatively pain free” viii) 0900 “wound … oozing” (thereafter the wound is described as dry and clean until 29 October at 0900) ix) 0945 “well No significant pain … [on examination] Abdo[men] soft/non-tender/uterus well contracted Wound still oozing: light…”[27]On 26 October at 1100 the notes record: “Pressure dressing removed. Not oozing any more … still not feeling well”.[28]On 26 and 27 October the notes record that the Claimant was mobilising. On 28 October there is an entry for 1845:
“… in pain +++ unable to move – helped back to bed and analgesia and peppermint water”
[29]On 29 October there are the following relevant entries in the notes: i) 0900 “wound … bruised” ii) 1140 (a note by the SHO) “Abdomen slightly tender around woundWound → Noted bruising around the woundSlightly swollen on right side, ? small haematoma….” iii) 1300 “Emergency call … wound dehiscence – small bowel visible…”[30]Mr Taylor’s notes record:
“Findings: complete dehiscence of rectus sheath- suture tied at [left] edge of sheath but rest of sheath completely open …”
[31]In his evidence Mr Taylor stated that at the resuturing operation he found the uterine repair intact and apart from the fact that the suture of the rectus sheath had come undone, there was nothing untoward to see. By “untoward” he meant a haematoma. Four fat sutures were intact and the rectus sheath at the left hand edge was still intact. He explains that this would mean that the wound had come undone at the right angle (that is the end of the incision). He found no evidence of haematoma.[32]When asked about Mr Habeeb’s technique of inserting a stay stitch at the angle nearest to him, before commencing suturing at the other end, Mr Taylor said that he found no stay stitch at the right angle. He saw no evidence that the suture had snapped or stretched. He removed the suture material he found.[33]However, he did not accept that there had been no stitch at the right angle. He said that he did not forensically examine the Claimant. He regarded wound dehiscence as a recognised complication in abdominal surgery. He was not looking for any additional suture material. If a knot was not visible he would not look for it. The operation was under general anaesthetic, it is a high risk procedure, and an emergency. If he had looked around for more material he would have risked causing a secondary haemorrhage. And the patient was still at risk of embolism. By 29 October the tissue had naturally become enflamed and swollen, and fat obscured the surgical field. Absence of evidence of a stay stitch was not evidence of the absence of a stay stitch.[34]On 30 October the notes record at 1205:
“pain when coughing …. Difficulty coughing and expectorating due to pain”

SUGGESTED MEANS BY WHICH THE SUTURE MIGHT HAVE FAILED

[35]The pleaded case is that: “The probability is that the suture at the right hand end of the rectus sheath had become undone shortly after the operation. This will occur when the suture is cut too close to the knot, allowing the last throw to unravel leading to the knot becoming undone. As the sheath was found to be ‘completely open’, the probability is that the suture had retracted through the layers”.[36]In his first report Mr Brunskill states (as is common ground) that wound dehiscence in a transverse lower abdominal incision is an extremely rare complication, especially in a young healthy patient who has not had previous surgery in that area. He expressed the opinion that dehiscence of a wound in these circumstances is “almost impossible” if the wound has been correctly repaired.[37]He explained the significance of the word “almost” in cross-examination. Mr Brunskill accepted, and it is common ground, that such dehiscence can sometimes follow a procedure which is apparently been performed with competence. It follows, as has been made clear on the Claimant’s behalf, that this case is not advanced on the basis of the maxim res ipsa loquitur.[38]In his first report (26 January 2009) Mr Brunskill set out four mechanisms by which such dehiscence can occur, only two of which are consistent with the evidence in this case. This was agreed between the experts at their first conference. One mechanism is that the suture broke or snapped and the other is that the right hand knot became untied. The two irrelevant mechanisms are where the tissue (rather than the suture) gives way, or where a knot is pulled through the tissue.[39]Mr Brunksill concludes in his first report that the only plausible explanation for the wound dehiscence in this case is that the knot became untied, either because it was “inadequately tied”, or because “the suture was cut too short”. He based this conclusion on the following reasoning: i) No suture was found by Mr Taylor at the right hand side of the sheath ii) The evidence of the Claimant, her husband and mother was that it appeared to them that Mr Habeeb was suturing “very quickly” iii) There is a publication by Hogston “(Abdominal Wound Closure: How to avoid Complications” in O’Donovan ed “Complications in Gynaecological Surgery” (2008), Springer, pp43-51) (“the Hogston paper”). In this he states that “the overwhelming evidence suggests that fascial dehiscence is nearly always due to a technical error” and wound failure due to dehiscence “generally occurs between 3 and 10 days after surgery”.[40]Mr Tuffnell in his first report (20 November 2008) identified a number of factors which increase the risk of wound breakdown. He identified the following as certainly relevant (the first two) or probably relevant to this case: i) It was emergency surgery ii) The patient was overweight iii) The presence of a haematoma iv) Tension on the wound by bowel distension.[41]As to the means of breakdown, Mr Tuffnell said that it was not possible to know whether the knot came free or the suture snapped.[42]A telephone conference was held by the experts on 25 March 2009. They agreed the following: i) “An incision of up to 15cm is commonly adequate for uncomplicated caesarean delivery although a larger incision should not increase the risk of complications. It is important to make an incision that is large enough to deliver the baby easily”. ii) Having an incision of 23cm does not make wound dehiscence more likely iii) 20 minutes for suturing is not excessively short iv) A right handed surgeon standing on the patient’s right would usually suture the sheath from the left hand end to the right v) Failure occurred at the right hand end of the wound and the suture then retracted through the wound allowing it to open.[43]In the note of that conference i) Mr Brunskill recorded that “If the suture snapped there would be some evidence of the knot beyond where the break occurred (i.e. at the right hand end of the wound) but no such material was found… the probable cause is that the knot became undone” ii) Mr Tuffnell recorded that “Although Mr Taylor did not see a knot [at the right hand angle] it would not always be possible to see a knot amongst the other tissue at [4] days… the probable cause is that the suture snapped”.[44]In my judgment it is not possible to infer from the fact that Mr Taylor saw no suture material on the right side that there was no such material. So the fact that Mr Taylor found no suture material on the right is not a sound basis for the conclusions Mr Brunskill seeks to draw from it.[45]On 8 July 2009 Professor Hainsworth made a report for the Claimant on the tensile strength of three sutures, including Monocryl and PDS (all of them supplied by Ethicon, a division of Johnson and Johnson Medical Ltd). Monocryl and PDS are single strand filaments. The “tests were conducted with ambient atmospheric conditions of 21-25°C and at relative humidity of 50…” The tests were ones using a standard technique for testing wire. The material was loaded to failure by moving apart grips holding the material. She concluded that “In layman’s terms the suture materials have very high strengths, equivalent to those of steel wire used in ropes [and]… 60% of the strength of Monocryl … would still make this a strong material”. The sutures extend to a large extent before failure occurs.[46]On 16 July 2009 Mr Brunskill wrote a letter to the Claimants solicitors. He remarked that it was not clear why Mr Habeeb had made the incision so large, adding: “It is not possible to say that large incision of itself directly equals lack of care and/or inexperience; it may however in conjunction with other indicators suggest inexperience or lack of skill… My view is that several aspects of this case suggest poor surgical technique. Mr Habeeb made a very large incision, he repaired the incision very quickly, he did not achieve haemostasis (leading to a pressure dressing being required)… Prof Hainsworth confirmed my opinion that in the case of the Claimant the suture did not break”.[47]On 20 July 2009 the Particulars of Claim were amended to add the averments that “the suturing was carried out particularly quickly” and “the skin incision was unnecessarily large measuring some 23 cms in length”. It was not made clear what the significance of these amendments was to be. They appear under the narrative part of the pleading and are not said to be particulars of negligence. By amendment to the Defence they were denied.[48]On 20 January 2010 Mr Brunskill issued his supplementary report. This was made on consideration of the witness statements of Mr Habeeb, the Claimant and her husband and mother, and Prof Hainsworth. But he also reconsidered the views he had previously expressed, based on the material originally before him. He considered that the time taken to suture the wound would have been significantly less than 20 minutes, and that “this could well be consistent with the descriptions given by” the Claimant and her mother. He said that Mr Habeeb “had not indicated why it was necessary for him to perform an incision of such excessive size”.[49]On 25 January 2010 Professor Hainsworth issued a second report on suture strength “in an impact loading situation as might be experienced in a cough after an operation”. The tests were conducted in the same ambient conditions as before. She concluded that none of the suture materials would be likely to fail given a sudden ‘jerk’ from coughing.[50]It appeared from Mr Habeeb’s witness statement that his suturing technique was different from what Mr Brunskill had previously assumed. Mr Brunskill had assumed that the technique was to knot a stitch at one end, suture the wound, and then knot a stitch at the other end. Mr Habeeb’s technique is first to put in a clip at each angle. Next he would tie the right angle with a stitch, and cut the filament off. Then he would make a knot at the left angle and commence suturing. He would place stitches at “approximately 1cm intervals and 1cm away from the incision line”. Once he reached the right angle he would tie the knot on to the stitch that he had first inserted.[51]Mr Brunskill described this technique as “rather unusual”. What he meant to convey by this word is not stated, but it appears to be prejudicial. Mr Dean mentioned it in that light in opening. However, in cross-examination Mr Brunskill accepted that it was a proper technique to use.[52]Mr Brunskill then noted that the Claimant, her husband and mother all state that Mr Habeeb was standing to the Claimant’s left. They had first put that in a witness statement a week earlier. He goes on to say that this suggests that “he was left handed or (unusually) performed the surgery as a right handed surgeon from the left side. The rectus sheath suture unravelled from the right hand end indicating that the knot failure (or by the Defendant’s case the suture failure) occurred at the site of the right hand knot… this would be consistent with insufficient suture having been left protruding from the knot when the stitch was cut allowing the cut end to gradually retract into the knot causing it to be come unfastened after the operation was completed”.[53]Next Mr Brunskill states that the 1cm intervals between and the 1cm length from the suture line should each have been 0.5cm. But in cross-examination he withdrew this criticism. He attributes the measurement of 0.5cm to Hogston’s paper. What Hogston in fact says in his paper is “Sutures should be placed at least 1cm from the wound edge and less than 1cm apart”. In cross-examination Mr Brunskill accepted that the technique Mr Habeeb described was consistent with what Hogston described. He withdrew the criticism and gave no explanation for his own error.[54]Mr Brunskill then proceeded in his supplementary report to comment upon Mr Habeeb’s CV and his working hours. I shall return to this topic below. Finally he states that Professor Hainsworth’s reports confirm his view that the suture did not break, but came unfastened.[55]On 6 March 2010 a few days before the hearing, there was a further telephone conference between the experts. Amongst the matters agreed in the note of that conference are: i) “Some surgeons routinely use larger incisions than others. Of itself the length of the incision does not necessarily imply poor technique… Dr Habeeb does not indicate any specific difficulties in his statement and an incision of 23 cms would appear to be larger than usual in his clinical situation” ii) “It is not possible to determine from the records at what time Dr Habeeb completed the operation with this 23 minute period”.[56]Mr Tuffnell gave evidence, which is accepted for the Claimant, that in his experience sutures do sometimes snap while he is tying a knot.[57]Mr Habeeb gave evidence that he did not himself cut a length of suture. He took a pre-cut length of suture from a packet that was available to him in theatre. If it had been too short, he would have taken another length. There is no evidence before me as to the length of sutures kept by the Defendant and made available for surgeons to use on 25 October 2005.[58]In his closing submissions Mr Dean submitted that competently performed suturing should not dehisce. Had the suture snapped that would not indicate incompetence, but there is no evidence that that occurred, and the weight of the evidence is against it. He does not point to any direct evidence of negligence. But he submitted that there are good grounds for finding that Mr Habeeb’s technique was undermined on this occasion. The grounds he identifies are: i) the Hogston paper, ii) Professor Hainsworth’s evidence (to exclude snapping as an explanation) iii) The manner of suturing: that (on the evidence of the Claimant her husband and mother) Mr Habeeb stood to her left, although he was right handed, and that he undertook the suturing in a hurry iv) The size of the incision v) The fact that Mr Habeeb was a locum while fulfilling a full time job elsewhere.[59]Mr Kennedy submitted that none of these submissions is well founded. He refers to the undisputed evidence that Mr Habeeb is a surgeon with high qualifications and many years experience who had only one previous incident where there was a wound breakdown. That occurred in hysterectomy performed as a result of cancer. There is no evidence of negligence, and negligence cannot be inferred from wound breakdown. The burden of proof lies on the claimant and it is not for the Defendant to prove a non-negligent cause.

THE HOGSTON PAPER

[60]This paper was not prepared for forensic purposes. It is not a criticism of the author when I say that I have difficulty in following the paper, and difficulty in seeing its relevance to this case.[61]The passage cited in para 39.iii) above must be read in the light of the purpose for which the author was writing. Immediately preceding that passage there are the following sentences: “Fascial dehiscence is the separation of the musculoaponeurotic layer and generally occurs between 3 and 10 days after surgery. However, incisional hernias may present years later. The incidence has remained remarkably stable over the past 30 years at a rate of 0.5% to 3%. This may reflect improved techniques that have overcome the increased comorbidities in patients who would not previously have had surgery performed”.[62]There are 25 other papers referred to in footnotes to the paper, but none of them is referenced in support of the statement that “overwhelming evidence suggests that fascial dehiscence is nearly always due to a technical error”. To find that evidence it is necessary to read on. Counsel agree that the only relevant passage in the paper is one at p47:
“VanGeldere [footnote 11] showed that with correct attention to technique, the incidence wound disruption was 0.6% in 2488 cases. Investigation of these 15 failures revealed a suture length of just over 3:1 rather than the recommended 4:1. The other scenario responsible for wound disruption is running out of suture and managing by using smaller bites and struggling with an unsatisfactory knot”
[63]This passage is difficult to follow. I do not know if sight of the paper by VenGeldere (“One hundred years of abdominal wound dehiscence and nothing has changed” in Hernia, 2000;4;302-304) would have made it easier to follow, because I was not shown that paper. I have no information about the circumstances of the 2488 cases, so I cannot judge whether they are comparable with the present case.[64]It is a matter of conjecture how it was established in the 15 cases investigated that the suture length was just over 3:1, rather than 4:1. The length of the incision can always been measured from the scar. But from the evidence of Mr Taylor, I infer that the surgeon who resutures a wound that has broken down will be concerned to heal the patient, not to conduct an investigation into the cause of failure. He is not conducting the equivalent of a post mortem examination. And the condition of the tissue will be different from what it was when the wound was first sutured. So the fact that he does not find a length of suture in the wound does not mean that it is not there. It may be that in those 15 cases referred to by Hogston and VanGeldere (unlike in the present case) it was known what length of suture was used by the surgeon.[65]Further, none of the 15 cases apparently involved “managing by using smaller bites and struggling with an unsatisfactory knot”. It is not clear what source Hogston had for failures in that scenario, or how it would be known that that is what had occurred.[66]Nor were any of the 15 failures referred to by VanGeldere attributed to the two other causes which both experts in the present case agree may cause such a failure (where the tissue (rather than the suture) gives way, or where a knot is pulled through the tissue). And it appears that none of the 15 failures revealed suture snapping. But it is accepted in the present case that that can occur.[67]Mr Dean submits that what Hogston refers to as technical error would in all cases also amount to a failure to meet a professional standard of practice recognised as proper by a competent body of professional opinion. I think it unlikely that that would be the case. Before a finding of negligence could be made in any particular case, all the circumstances of the case would have to be taken into consideration. Hogston was not addressing his mind to professional negligence.[68]In any event in the present case it is agreed that it is possible for wounds to dehisce without negligence.[69]In this context, I am unable to draw any inference from the fact that the wound broke down to the effect that the cause of the break down was likely to have been one or other of the two causes which were considered by Hogston.

PROFESSOR HAINSWORTH’S EVIDENCE

[70]Professor Hainsworth’s evidence is uncontradicted. But the tests she describes, and the conditions in which those tests were conducted, appear to me to bear no relation at all to the conditions and stresses which the sutures would undergo in the process of being knotted, and then being left for four days inside the abdomen of a living patient. I have no expert evidence that enables me to relate the test results to what might have occurred in this case. Mr Tuffnell stated that this testing was not relevant to clinical experience. That implies no criticism of Professor Hainsworth.[71]Mr Brunskill simply asserts that the test results confirm his opinions. I cannot accept that assertion.

THE MANNER OF SUTURING

[72]In her first witness statement dated 18 November 2008 the Claimant gives no description of what occurred whilst she was in theatre, other than to say that she was given a top up of her epidural and that the procedure was very quick. In her first statement of Mrs O’Brien on 18 November 2010 Mrs O’Brien states that she was surprised how quickly Mr Habeeb closed up the wound. Mr Ternent gave his first witness statement on the same date. He also stated that Mr Habeeb put the stitches in very quickly.[73]I attach no weight to any of this evidence. I accept that these witnesses all believed what they stated. But the Claimant does not herself refer specifically to the suturing. Mr Tenant has no experience upon which to judge the speed at which a surgeon works. Mrs O’Brien’s professional experience of Caesarean Sections was very many years ago, and was very limited. She has no relevant expertise upon which to base an opinion as to the speed at which a surgeon works.[74]None of the Claimant, her husband and mother made any mention in their first witness statements about where Mr Habeeb was standing.[75]In his statement of 27 April 2009 Mr Habeeb said nothing about where he would have been standing relative to the Claimant. The first mention of where Mr Habeeb was standing came as recently as 13 January 2010. On that date the Claimant made a supplemental witness statement in which she said: “Although it was some time now, to the best of my recollection, whilst I was in theatre …Dr Habeeb was standing on my left side when undertaking the operation”.[76]On the same dated each of Mr Ternent and Mrs O’Brien wrote that he/she had read his wife’s/daughter’s statement and to the best of his/her recollection and belief it is true.[77]In her oral evidence the Claimant had no hesitation. She expressed her recollection in firm terms and demonstrated how the baby was handed across her to be given to the midwife. In oral evidence Mr Ternent was also firm in his evidence that Mr Habeeb was on the Claimant’s left. Mrs O’Brien said the baby was definitely passed across the Claimant.[78]Mr Habeeb has said that he has no direct recollection of 25 October 2005, but he only ever performs an operation, including a Caesarean Section, standing to the right of the patient. There is a particular reason he gives in relation to Caesarean Section which is supported by the experts. It is that the surgeon performing a Caesarean Section should use his dominant hand to hold the baby’s head. He is right handed. He said that if he had been on the left he would have inserted the first stitch on the left, and then moved to the right of the patient and sutured towards where he was standing. But he had never done that.[79]While I accept that the Claimant and her witnesses believed what they said, I have difficulty in understanding how their recollection of the position of Mr Habeeb is first recorded in January this year, and why the evidence they gave orally is firmer than the evidence given in their written statements. Of course the birth was a particularly memorable day for them. But the position of the surgeon was not significant for them at the time of the birth.[80]On the other hand, the 25 October was not a significant working day for Mr Habeeb. He had by then done so many Caesarean Sections, and this one appeared at the time to be routine. But standing on the left of a patient was not routine. I think that Mr Habeeb would remember if he had ever stood on the left of a patient.[81]For these reasons I prefer the evidence of Mr Habeeb.[82]In the event, in my judgment it would not have made any difference if I had preferred the evidence of the Claimant. The experts both agreed in evidence that the side on which the surgeon stands is not significant to the suturing. Mr Tuffnell sometimes stands on the left, for example for hysterectomies. It is only for the holding of baby’s head that it makes a difference.[83]The most that Mr Dean could submit was that if Mr Habeeb only stood on the left on this one occasion, then he would have been suturing from an unaccustomed position, which might have led to substandard work. This is speculation.[84]A finding that Mr Habeeb had stood on the left would also have undermined part of the Claimant’s case (see para 52 above). Since the suturing would have ended on the left, and since Mr Taylor found the left stitch in place, it would follow that on that scenario the failure of the suture could not be attributed to Mr Habeeb having too short a length of suture.[85]As to the time taken for the suturing, there is simply nothing upon which I could find that the time available was too short for an experienced surgeon to carry out that work. I accept Mr Habeeb’s evidence that he would not have felt in a rush, and would not have stitched unnecessarily quickly. He used pre cut suture. He could not remember running out of suture, but if he had, he would have asked for more. He would not struggle with a knot.

THE SIZE OF THE INCISION

[86]The first reference to this in the evidence is in the statement of Mrs O’Brien on 18 November 2009. She wrote that she thought that the incision was unnecessarily long. She states that she has seen a number of deliveries by Caesarean Section and that there is usually only a small scar. The experts have confirmed that that is indeed usually the case. Mrs O’Brien’s concern appears to explain why the length of the incision has been mentioned in this case, but it adds nothing to the evidence of the expert witnesses.[87]In the light of what the experts have agreed (para 42.ii) above) there is no significance in this point. Even if the incision were longer than was necessary, that does not provide any basis for concluding that the suturing was not up to the required standard.[88]In cross-examination Mr Habeeb could not recall why he decided to make the incision the length he did. There is nothing in the notes that appears to explain that decision, and the only point that Mr Habeeb referred to was that the baby was OP. He said that when he thinks that delivery may be difficult, then that would be a reason for a large incision. If the incision were found to be too small during delivery it is not good to have to enlarge the incision at that point. The baby is at risk of hypoxia (and brain damage) if the delivery takes too long. He thought that he might have anticipated a difficult delivery in the present case.[89]I do not have to make any finding as to why the incision was the length it was. I recall that it is not alleged that Mr Habeeb was negligent in this regard. I would not take a different view myself.

MR HABEEB’S FITNESS TO PERFORM THE OPERATION

[90]There is nothing in the Particulars of Claim referring to Mr Habeeb’s qualifications, or to the fact that he was working as a locum in one hospital while being employed full time at another some distance away. It was Mr Brunskill who raised questions about these matters in his second report dated as recently as 20 January 2010. At the same time he made observations on Mr Habeeb’s CV which are clearly prejudicial, although he does not spell out in terms what he means to convey. In cross-examination he accepted that Mr Habeeb certainly was qualified to carry out the operation on the Claimant.[91]Mr Brunskill did make clear what he was intending to convey by his references to Mr Habeeb working as a locum while holding a full time post at another hospital. His suggestion was that Mr Habeeb was placing the women under his care at unnecessary risk. Given the way that the point was raised, there was no documentation before the court to show what Mr Habeeb’s working hours actually were at the relevant time. The question could not be fully explored in oral evidence without the relevant records. Mr Habeeb gave oral evidence of his working hours and holiday entitlements as best he could from recollection to explain how it was that he was not working excessive hours.[92]Some time was spent in cross-examination on these topics, both of Mr Habeeb, and of the experts. The evidence of Mr Tuffnell is that there was nothing unusual in this arrangement, and that without such arrangements hospitals would be unable to maintain the staffing levels necessary to meet the needs of patients.[93]It is regrettable that these points were ever raised in open court. It is a serious allegation to make against a hospital and a surgeon to say that a surgeon was working excessive hours or was otherwise less than fully fit to perform an operation. If such serious allegations were to be made, they should have been based on evidence and then pleaded (by amendment), so that the witnesses would have had a proper opportunity to address the points.

OTHER FACTORS

[94]A number of other points were raised during the hearing, which I do not need to consider in detail. One was whether the Claimant was overweight, since that can be a risk factor for wound breakdown, and can require a longer incision. She was overweight. As calculated by Mr Dean, using the NHS weight online calculator (and agreed by Mr Tuffnell) she had a BMI of 32 on 26 September 2005. For a woman who was not pregnant, that would be classified as obese.[95]Another point was whether the Claimant coughed enough to disturb the suture. The notes record that she coughed after the wound had been repaired by Mr Taylor, but not that she did so before. The fact that the nurses administered Peppermint water indicates that the Claimant was thought to be suffering from bowel distension, and Mr Tuffnell states that bowel distension is almost universal after Caesarean Section. It is not possible to say whether or not there was a haematoma. If there had been, then it would probably have been lost when the wound broke down.

DISCUSSION

[96]I have indicated above some of the evidence I accept, and some I do not. It is just not possible on the evidence before me to reach any conclusion as to what was the likely cause of the wound breakdown in this case. I have rejected each of the propositions which are set out above in paras 39 and 43.i) as the reasoning of Mr Brunskill in his first report. I have also rejected the new case advanced following the first telephone conference between experts, based on the length of the incision and a supposed conjunction of that with other indicators. This case is set out in the documents dated 16 July 2009 to 20 January 2010. It is possible to reach a conclusion on each of the grounds put forward for the Claimant for suggesting that Mr Habeeb’s technique was below standard on the night in question (para 58 above). I reject them all, for the reasons given.[97]On the contrary, Mr Habeeb was an experienced surgeon who was qualified to perform the operation that night. It is more likely than not that his work that night was up to the standard required of him. Surgery carries a risk, especially emergency surgery. The court should not lightly infer from the fact that there has been a rare occurrence such as the dehiscence in this case that it is probably due to the negligence of the surgeon.

CONCLUSION

[98]In my judgment there is no evidence before the court from which I could conclude that Mr Habeeb was in any way negligent in his care of the Claimant.

Cited in 2 later judgments