Jacobs v King's College Hospital NHS Foundation Trust [2016] EWHC 121 (QB)

Case No HQ13X03568[2016] EWHC 121 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/01/2016
Before
MR JUSTICE JAY
Between
LINDA CAROL JACOBSClaimantKING’S COLLEGE HOSPITAL NHS FOUNDATION TRUSTDefendant
Jonathan Hand (instructed by Irwin Mitchell LLP) for ClaimantTom Gibson (instructed by Kennedys) for DefendantHearing Hearing dates: 21 st and 22 nd January 2016
Judgment

Introduction

[1]This is a claim for damages for clinical negligence consequent on surgery which Mrs Linda Jacobs (“the claimant”) underwent at the Princess Royal University Hospital (“the hospital”) on 13th July 2010. The defendant is the NHS Trust now responsible for the tortious liabilities of the hospital. The essence of the claimant’s case is that the defendant’s surgeon, Mr Shamsi El-Hasani, negligently failed to identify and repair an indirect inguinal hernia in the right groin, being present at the time of the operation on 13th July 2010. His repair was limited to the direct inguinal hernia which the surgeon recorded in his operation note. In consequence, the hernia persisted until it was repaired at a second operation which took place on 9th September 2011. The claimant also has a subsidiary argument that at a follow-up consultation on 2nd August 2010 there was a negligent failure to respond to her complaint, to identify that there was a persisting hernia, and to refer her for further investigation and treatment.[2]Before examining the issues in more detail, I should set out the relevant chronology. I will do this with reference to the witness evidence which I heard and the contemporaneous documentation.

Essential Factual Background

[3]The claimant was born on 16th December 1975. Around the end of February 2010 she noticed a lump in her right groin. At that stage, it was pain free. On 27th April 2010 the claimant attended her GP complaining of “a fluidy like lump in right groin for > two months. No pain or ache, palpable when standing and disappears on lying flat”. The GP diagnosed a right inguinal hernia and referred the claimant to surgery.[4]On 21st June 2010 the claimant was seen by Mr El-Hasani. He noted a four month history of lump in the right groin which recently had started to yield some discomfort. Following examination Mr El-Hasani diagnosed a reducible right inguinal hernia, and recommended that it be treated by laparoscopic repair as a day case.[5]The operation took place on 13th July 2010 and lasted about 30 minutes. Mr El-Hasani told me that he performed the procedure in his usual way and found a right-sided direct inguinal hernia. The hernia sac was reduced and prolene mesh inserted into the peritoneal pouch created by the surgery. According to the note, the operation was uneventful.[6]The claimant’s evidence, supported by her mother, was that shortly after arriving home on the day of the operation itself she noticed that the lump was still present in her right groin. As she puts it in her witness statement dated 1st March 2015:
“‘it felt exactly as it had done before the operation, for example when I coughed, the area would expand in the same way. It was as though nothing had been done during the surgery. The lump didn’t reduce in size over the following few weeks but remained exactly the same.”
[7]In cross-examination by Mr Tom Gibson for the defendant, the claimant was taken to handwritten notes, in the form of a diary or aide-memoire, which she seems to have started in mid-June 2011. These notes record that about 7 days after the first procedure the claimant telephoned Mr El-Hasani’s secretary about her concerns. According to her witness statement, and her oral evidence, the claimant was adamant that this telephone call took place on the day following the procedure. Ultimately, though, I do not believe that the exact date matters. The claimant says that she was advised by the secretary to mention her concerns at outpatients.[8]On 2nd August 2010 the claimant was seen post-operatively by a nurse practitioner working in Mr El-Hasani’s clinic, Ms Starlene Grandy-Smith. According to the letter she dictated at the time:
“I am pleased to report that she is well and has no symptoms. On examination, her abdomen was soft and port sites were healing nicely and there was no evidence of recurrence. I have reiterated the necessary advice and I have not booked her a formal clinic appointment.”
[9]There is a dispute between the parties as to what occurred on this occasion. According to the claimant, she told Ms Grandy-Smith that she could still feel the hernia and that it felt like nothing was different in the groin area following her operation. The claimant was also complaining of abdominal swelling, which was a different symptom. Ms Grandy-Smith examined the claimant’s abdomen when she was standing up, and felt the lump in her right groin when she asked her patient to cough. On the claimant’s version, Ms Grandy-Smith explained that the lump could be fluid or swelling from the surgery and she was sure it would go down. On the basis of this evident reassurance, the claimant was not unduly concerned when her lump did not diminish in size. On the other hand, according to paragraph 7 of Ms Grandy-Smith’s witness statement, the claimant did not report a lump in the groin. On examination, there was no evidence of any abnormality. On my understanding of her evidence, Ms Grandy-Smith impliedly accepts that she may well have given the claimant reassurance, but this was on the premise that the latter was symptom-free and that no abnormal findings were made on examination.[10]In my view, what occurred on 2nd August 2010 raises important issues in the context of this litigation – being matters which I will have to resolve in due course. This resolution will need to be attained with reference to Ms Grandy-Smith’s contemporaneous letter and the oral evidence of both witnesses.[11]Following this consultation the claimant did not return to the defendant’s hospital. In August and September 2010 there was some infection around the wound site and the claimant had to be treated by her GP with antibiotics. In answer to my question, the claimant said that her abdominal swelling resolved within a number of weeks. Nothing then happened, at least according to the medical records, until 31st May 2011 when the claimant returned to her GP’s surgery complaining as follows:
“had lap[aroscopic] rt inguinal hernia repair done in August last year. Persistent fullness, lump and achy feeling still on same site. Mentioned it during last opd appointment and advised normal. Now starting to limp from the ache … o/e palpable and visible small lump on erect, tender.”
Following an examination the GP diagnosed a further right inguinal hernia and referred the claimant to surgery.[12]The claimant was asked close questions about the exact sequence of events leading up to this attendance at her GP. She said that she was increasingly aware of discomfort from the groin region, and when it started to ache she was worried. Before then, the claimant was prepared to live with it.[13]The claimant was seen by another surgeon, Mr Rajab Kerwat, on 13th June 2011. According to the original version of the letter he dictated at the time:
“Mrs Jacobs underwent a laparoscopic repair of a right inguinal hernia just under a year ago at the PRU hospital. However, she has felt a persistent lump in the right groin which she noted a few weeks after surgery. This has persisted throughout the course of last year and has now started causing her an increasing amount of discomfort. In addition, she has been feeling some odd sensation of pins and needles along the medial aspect of the upper right thigh extending into the groin and occasionally into the buttock area.”
Mr Kerwat was able to diagnose upon external examination and palpation a right indirect inguinal hernia. He was not called to give evidence, and I accept the submission of Mr Hand that without opening up his patient Mr Kerwat was unable to tell whether the hernia was direct or indirect. The fact that he was correct in his surmise is not relevant. Further, the fact that Mr Kerwat described this hernia as being “recurrent” is not a factor which I can properly recruit in support of the proposition that it was. This may have been Mr Kerwat’s assumption, but he could not have known.[14]As soon as the claimant received a copy of this letter, she sent an email to Mr Kerwat’s secretary complaining that the third sentence was incorrect and needed to be adjusted. As she put it in the email:
“on the day of my previous operation, when I returned home in the early evening I was aware then of my hernia lump still being present.”
The letter was accordingly corrected in line with the claimant’s wishes. It is clear, as the claimant’s diary entry for 15th June 2011 states, that she was in touch with solicitors at around this time.[15]It was put to the claimant that her purpose in sending the email to Mr Kerwat’s secretary was to ensure that the original version of his clinical letter was “hidden”. I cannot accept that. The claimant would have had no idea what would or might have happened to the first version of the letter once it was corrected, and certainly did not ask for that version to be destroyed.[16]The claimant’s symptoms worsened in the run-up to her second operation, and she told me that in the final week the pain was quite extreme.[17]The claimant underwent further surgery at the hands of Mr Kerwat on 9th September 2011. On this occasion the repair of the right inguinal hernia was performed by open surgery rather than laparoscopically. Mr Kerwat found a right-sided indirect inguinal hernia which he repaired. Thereafter, the claimant recovered satisfactorily from this procedure although experienced the normal symptoms of pain, discomfort and loss of amenity consequent upon surgery of this nature. Mr Kerwat’s letter following the claimant’s attendance at his outpatient clinic on 26th September 2011 records that she “has minimal residual complaints”.[18]Importantly, the claimant felt completely reassured after the second procedure. Crucially, there was no longer any lump. Accordingly, she was satisfied that the operation had “gone correctly”, a feeling which she had never had in relation to the first procedure. As she said in cross-examination:
“I knew the operation had gone wrong. I knew it had gone wrong from day one, if I’m honest – when I felt the hernia was still there.”
[19]It is apparent from this answer, and from the claimant’s evidence elsewhere, that she feels strongly that she was let down by her first surgeon. This feeling is shared by the claimant’s mother, Mrs Jeanette Whitehead, who told me that she feels “very strongly about the surgery”. Her evidence was that as early as the evening of 13th June 2010 her daughter was worried that the hernia was still there because she felt exactly the same as beforehand.

Some Basic Anatomy

[20]The inguinal ligament is a band running from the pubic tubercle to the anterior superior iliac spine. As the available photographs and diagrams show, within the inguinal ligament runs the inguinal canal, and furthermore there are two rings, the external and the internal. The precise anatomy differs slightly according to the sex of the individual. In women, the round ligament passes through the internal inguinal ring and lies within the inguinal canal.[21]A direct inguinal hernia is caused by the protrusion of the intra-abdominal contents through a weakness in the posterior (i.e. rear) wall of the inguinal canal. An indirect inguinal hernia is caused by the protrusion of the intra-abdominal contents through the internal inguinal ring and into the inguinal canal. Given the relevant anatomy, the hernia sac of an indirect inguinal hernia “travels” alongside the round ligament through the internal ring into the inguinal canal.[22]These two species of hernia are differently located although the distances involved may be measured in millimetres. Further, it is wrong to suppose that the underlying pathologies differ; in truth, they are the same.

The Evidence of Mr Shamsi El-Hasani

[23]Mr El-Hasani is an experienced surgeon and has been a consultant since September 1999. He told me that during his career he has carried out 3,951 laparoscopic repairs of inguinal herniae and has had only three or four recurrences. The statistics are not entirely clear, because various figures were presented in evidence, but it would be reasonable to conclude that Mr El-Hasani’s recurrence rate is in the region of 0.1–0.2%. It is not suggested that this constitutes generic evidence of sub-standard practice. On the contrary, these recurrence rates are excellent. Mr El-Hasani is the main author of two papers which review the effectiveness and safety of the laparoscopic technique, and mention possible pitfalls.[24]Mr El-Hasani explained that his operation note is a prepared, pro-forma document, which he amends in manuscript to reflect the circumstances of the case before him, including the sex of his patient. The note reads, so far as is material, as follows:
“Position Supine … Ports 10mm umbilical port then 5 mm secondary ports under direct vision in either flank Findings Rt; Direct Lt; Intact Procedure Peritoneal flaps raised to create the appropriate pouch. Sac was reduced. Major vessel and round lig[ament] structures identified and protected. 10x15 cm prolene mesh inserted in each created pre-peritoneal pouch. Peritoneal flaps closed with PDS … [italics denote Mr El-Hasani’s manuscript additions].”
Ports 10mm umbilical port then 5 mm secondary ports under direct vision in either flank Lt; Intact

Ports 10mm umbilical port then 5 mm secondary ports under direct vision in either flank

[25]Mr El-Hasani provided a fluent and animated account of his laparoscopic technique. In my view, this should have been provided in his witness statement, but Mr Jonathan Hand for the Claimant rightly did not object, and I appreciate that some sort of oral explanation would always have been required.[26]Mr El-Hasani could not give evidence of what he did in the claimant’s case; all he can do is explain his standard practice. Had he been able to remember this particular patient, I would have been surprised.[27]It is unnecessary to set out each and every step in this procedure. I focus on potentially salient matters.[28]The laparoscopic technique is less invasive than open surgery, and so the risk of complications is lower, the patient recovers more quickly, and the incidence of recurrences (in the hands of an experienced surgeon) is also significantly lower. The surgeon creates three ports in the region of the umbilicus: one is for the right hand; another is for the left hand; and the third is for the camera. The camera provides a magnified image of the internal views, the peritoneal cavity having been filled with gas to create an artificially expanded space.[29]During the course of the procedure, Mr El-Hasani told me that he would check carefully for incidental and left-sided herniae, in the unlikely event that one or more of these might be present. The peritoneum is then carefully dissected and a pre-peritoneal pouch created. The inferior epigastric vessels are then visualised as crucial landmarks, to avoid the risk of accidental trauma. After further dissection, a 10x15 cm prolene mesh is inserted through a port and placed in the pouch, with the medial part over the midline. The mesh covers the vessels, medial and lateral, and any defects – i.e. any herniation. Mr El-Hasani stressed that it was important to ensure that the mesh lies flat and is not curled. The mesh is held in place with one vicryl stitch. The peritoneum is then closed, and the procedure completed.[30]Mr El-Hasani emphasised two keys points during the course of his evidence in chief and cross-examination. These were, first, that it would have been impossible for him not to have seen an indirect inguinal hernia on the right side had it been present. After extensive peritoneal dissection, leading to the displaying of the round ligament (mentioned in the operation note), the internal ring is plainly visualisable. Although a rare event in younger patients, Mr El-Hasani said that “pantaloon” herniae (i.e. both direct and indirect) are well known. Secondly, Mr El-Hasani explained that the laparoscopic technique does not permit of the possibility of an indirect sac, or hernia, being “missed”. Paraphrasing his oral evidence, he said that one cannot dissect part of the inferior posterior fold of the peritoneum and leave a sac in the inguinal canal. Although a surgeon would not know in advance of the procedure that an indirect hernia might be present, the steps which must be taken to address a direct inguinal hernia will necessarily, and perforce, be addressing an indirect one too.[31]As the case before me developed, it became clear that these were two related, rather than discrete, points. A proper laparoscopic repair depends on a complete dissection and then the accurate placement of mesh in the pouch, covering all possible herniated areas. The complete dissection will enable full visualisation to occur, but will not, without more, achieve a complete repair of any herniated tissue. Furthermore, the mesh – which will complete the repair – cannot be properly located in the pouch without a full dissection having been performed, because there will not be room for it. Moreover, if the surgeon leaves any herniated matter in the relevant area, the mesh will not be capable of lying flat.[32]In cross-examination, Mr El-Hasani was asked questions about the possibility of recurrence – being (on these facts) the subsequent development of an indirect inguinal hernia in the area which has been successfully repaired. Mr El-Hasani said that a direct hernia could not arise, owing to the presence of the mesh, but an indirect one could develop either below or, more likely, lateral to the mesh. According to one of Mr El-Hasani’s papers, this might happen if the mesh subsequently rolls up or curls. However, I believe it would be fair to say that Mr El-Hasani was offering this possibility up as no more than a hypothesis.[33]Mr El-Hasani also addressed seromas, being collections of fluid, which can be gelatinous, in the area of the repaired hernia. Their incidence is quite rare (3.09% in his studies), but they can behave in the same way as herniae. They will usually resolve within 3 months, although this process can take up to 9 months.

The Evidence of Ms Starlene Grandy-Smith

[34]I have already summarised some aspects her evidence, but it is necessary to address two points.[35]First, Ms Grandy-Smith told me that she has been a nurse practitioner for 13 years, that she started to specialise in laparoscopic surgery shortly after arrival in post, and that she has seen hundreds of patients with herniae.[36]Secondly, Ms Grandy-Smith was asked in cross-examination whether, if the claimant had complained about a lump in her groin but, following examination, she felt that there was nothing untoward, the letter she wrote to the claimant’s GP would have been any different. In answer to Mr Hand’s questions, Ms Grandy-Smith said this:
“If I found nothing untoward, I would have offered reassurance … If there were no concerns my end, I wouldn’t find the need to record what had been said to me.”
A while later in the cross-examination, Ms Grandy-Smith agreed with counsel that if her patient had complained of a persistent lump with no pain, and she had formed the view that it was fluid and constituted no cause for concern, she would have written the same letter.[37]It would be reasonable to deduce from these answers that Ms Grandy-Smith’s letter would have been written in exactly the same terms if the claimant’s version of events was correct and the nurse had been satisfied that the lump would go down and there was nothing to worry about.[38]However, at the time I was not entirely satisfied from Ms Grandy-Smith’s tone and demeanour that she had fully understood what was being put to her. I emphasise that I was not concerned about any lack of clarity in Mr Hand’s questions; the concern lay in a feeling that counsel and the witness may have been at cross-purposes. In re-examination, she said that if the patient had said that she could still feel a lump in the groin region, she would have put that in her letter to the GP. Then, and in answer to my questions, Mr Grandy-Smith said this:
“If she had reported a lump, and I felt that there was anything that warranted further treatment, I would have documented it and done something about it. If she had reported a lump, I would have recorded it. If there was some swelling in the abdominal wall, I would have offered reassurance. If there was a lump, and it had been there since surgery, that would have been in the letter. The purpose of examining and palpating the patient was to see if there was any abnormality to be detected.”
[39]I will be reverting to this point in due course, but in my judgment Ms Grandy-Smith’s evidence is more accurately reflected in the answers she gave to my non-leading questions as set out under paragraph 38 above.

The Expert Evidence

[40]I heard expert evidence from Mr Paul Durdey FRCS, for the claimant, and Mr Luke Meleagros FRCS, for the defendant. I am satisfied that both experts were endeavouring to assist the court. Mr Meleagros has greater experience in laparoscopic procedures generally, although neither has much recent experience in the technique deployed by Mr El-Hasani. There is a substantial measure of common ground between them.[41]The experts are agreed about the following:(i) Mr El-Hasani’s operation note only describes a direct inguinal hernia.(ii) it is clear from the operation note that Mr El-Hasani identified the internal ring, and that the inference from his note is that the round ligament was the only structure passing through it (i.e. that there was no indirect inguinal hernia passing through it as well).(iii) the 10x15 cm prolene mesh covers the entire inguinal canal including the posterior wall, i.e. the areas where both direct and indirect inguinal herniae are found.(iv) in the event that the court finds that an indirect inguinal hernia was present on 13th July 2010 but was not repaired, that would be sub-standard surgery.(v) in the event that the court finds that an indirect inguinal hernia was present on 13th July 2010 and was repaired, the fact that it subsequently recurred is a recognised complication of the procedure, and not evidence of sub-standard surgery.[42]Mr Durdey’s evidence, in a nutshell, is that the most likely explanation for the presence of the lump found at subsequent surgery on 9th September 2011 was that it constituted a persistent indirect inguinal hernia which had not been repaired at the first operation. Alternative explanations, such as accumulation of gas and fluid, are unlikely. Mr Durdey relies on the claimant’s evidence to the effect that the lump was exactly the same and did not go away, on the GP’s record dated 31st May 2011, and on Mr Kerwat’s operation note, referring as it did to an indirect inguinal hernia. Mr Durdey accepts the theoretical possibility of early recurrence, namely that the indirect inguinal hernia was repaired on 13th July 2010 and came back, but observes that this cannot really be squared with the claimant’s evidence to the effect that the lump did not disappear. In other words, early recurrence is possible, albeit very rare, but if the claimant is right there never really was a period of time when the hernia was not present.[43]In his oral evidence, Mr Durdey explained why he disagreed with Mr Meleagros. Contrary to the latter’s view, the lump post-operatively was reducible (this was Mr Durdey’s interpretation of the claimant’s witness statement, and she confirmed it expressly in oral evidence). Even though the claimant describes a lump of the “same dimensions”, a lay person would not readily be able to tell this, particularly if the indirect hernia were larger than the direct one. The hypothesis that the lump was a seroma or a haematoma is implausible, because these disappear after a matter of weeks, are irreducible, and do not present upon coughing. The hypothesis that the lump was caused by an accumulation of gas introduced intra-operatively is also implausible, because this dissipates after 48 hours or so, and the resultant lump is irreducible.[44]As for the point that Mr El-Hasani would surely have seen an indirect hernia once he had dissected the relevant structures, Mr Durdey said that nothing is impossible, because even extremely experienced surgeons can make a mistake. He explained that Mr El-Hasani was probably the most experienced surgeon in the country carrying out this particular procedure. This is borne out by his extremely low recurrence rates.[45]Mr Durdey agreed in cross-examination that if Mr El-Hasani had carried out a full dissection he would have been in a good position to visualise any indirect inguinal hernia, and that he would have had to dissect the peritoneum fully in order to insert the mesh properly. He did not accept that it would have been “impossible” to miss an indirect hernia sac, because Homer might nod; but he fairly accepted that it was unlikely.[46]Mr Durdey accepted that the claimant’s allegations of breach of duty stand and fall together. If the surgeon missed the indirect inguinal hernia on 13th July, then it was still present on 2nd August; if he had repaired it, it would not have been present at the later date.[47]In answer to my question, Mr Durdey accepted that the claimant’s clinical history was more consistent with the hernia diagnosed on 31st May being a recurrence rather than something that had been “missed” at surgery. This is because there is no clinical note of symptoms for several months, and the lump was noted by the GP as being small. On the other hand, a hernia can become painful as and when it increases in size.[48]Mr Meleagros’ evidence, in a nutshell, is that it is intrinsically highly unlikely that an experienced surgeon could have “missed” an indirect inguinal hernia in an operation of this nature, particularly when his operation note has recorded the internal ring and the round ligament. Furthermore, the mesh would have covered the entire inguinal canal including the internal ring. Given that the claimant describes a lump of exactly the same dimensions post-operatively as pre-operatively, and given that the direct inguinal hernia was repaired, the only explanation for this is that the space vacated by the repaired hernia was filled by gas and/or fluid. Furthermore, the claimant’s complaint in May 2011 was of a small lump, which is entirely consistent with the emergence of a different hernia in approximately the same place.[49]In elaboration of Mr Meleagros’ first point, paragraphs 1.7 and 1.8 of his liability report are, to my mind, particularly helpful:
“1.7 If there had been an indirect hernia sac, as is averred by the claimant, the peritoneum forming the sac would have been lifted away from the internal ring or the peritoneum would have been divided at the level of the internal ring, thus reducing the hernia or disconnecting an indirect hernia sac from the rest of the peritoneum, respectively. This operative procedure, to expose the inguinal region by dissecting the covering peritoneum is a necessary pre-requisite before the mesh repair can be performed. … [the round ligament] arises from the uterus and enters the internal inguinal ring. Therefore [the operation note] confirms that Mr El-Hasani had identified the internal ring and confirms that only the round ligament entered it and there was no indirect hernia present adjacent to the round ligament. 1.8 … If the peritoneum had not been dissected completely free from the entire inguinal area, including the posterior wall and the internal ring, it would not have been possible to insert the mesh to lie flat against the inguinal canal. If an indirect hernia had not been treated [by dissection], the surgeon would not have been able to insert the mesh and cover it with the peritoneal flaps and he would not have been able to suture the flaps over the mesh. If the mesh had been placed too far medially, as a result of failure to dissect the peritoneum over the internal ring at the lateral end of the posterior wall of the canal, as the claimant avers, then the mesh would have crossed the midline to the left side. Mr El-Hasani, an experienced laparoscopic surgeon would have readily recognised the abnormal position of the mesh if, as averred by the claimant, the peritoneum over the internal ring had not been dissected as part of the flaps.”
The words in square brackets represent my additions, deletions and paraphrases made either to reflect the oral evidence (Mr El-Hasani said in oral evidence, contrary to his operation note, that he did not clip the round ligament) or to add clarity. In his oral evidence, Mr Meleagros explained that the purpose of carrying out a wide dissection was to expose the myopectineal orifices, namely (for these purposes) the posterior wall and the internal ring. Further, the words I have italicised represent my view that the opinion being expressed by Mr Meleagros must be an inference rather than anything more concrete. Mr Meleagros cannot draw the hard-and-fast conclusion that Mr El-Hasani’s identification of the round ligament means that there was no evidence of indirect inguinal hernia; rather, it establishes that the surgeon would have been in a very good position to visualise the presence of such a defect.[50]Under cross-examination, Mr Meleagros agreed that there were two possibilities here: either the indirect inguinal hernia was present all along and was not repaired, or the entire canal was repaired on 13th July 2010, including any indirect inguinal hernia, but for some reason herniation recurred and exited through the internal ring. As I have said, the pathological processes causing direct and indirect inguinal herniae were the same. I raised a third possibility, namely that there was no indirect inguinal hernia present on 13th July, and that herniation recurred subsequently, but this is probably a sub-set of the second scenario.[51]Mr Meleagros was taxed about the reasons he gave in the joint statement for disfavouring the first scenario. I should add that these were reasons which should really have been included in his liability report, but I accept his explanation for not including them. He said that the claimant’s evidence was that the lump post-operatively was not reducible on lying down. To be fair to the claimant, her witness statement was silent about this particular matter, and in her oral evidence she said that her lump did in fact reduce on supination. I will need to consider whether I can accept her evidence on that point. Next, Mr Meleagros stated that if the claimant had a pantaloon hernia on 13th July, then post-operatively she would have been able to feel a smaller lump, not a lump which on her account was exactly the same. It was put to Mr Meleagros that if the indirect inguinal hernia had been larger than the direct inguinal hernia, then it was plausible that the claimant would not have been able to notice any difference in size. Mr Meleagros’ ripostes were that it was inherently implausible for Mr El-Hasani to have “missed” a large lump but have treated a smaller one (a good point in my view), and that whatever the relative sizes of the two lumps, there would still have been a noticeable reduction (a less powerful point in my view, since patients tend to be unreliable on this sort of matter).[52]Mr Meleagros’ third point was that neither the claimant nor her GPs would have been able to diagnose a hernia by looking for an expansive cough impulse, as opposed to the “ordinary” cough impulse which we experience in the abdomen and the groin without there being any herniation. The expansive cough impulse can only be ascertained by holding the lump between finger and thumb. I have some difficulty with this argument because the obvious question arises as to why GPs were recording positive cough impulses in their notes if, contrary to their understanding, this was entirely pointless and non-diagnostic. That said, it was not a matter explored with Mr Durdey and I would prefer to say nothing more about it.[53]Mr Meleagros’ fourth point concerned the possibility of gas and/or seroma and/or haematoma formation. An accumulation of gas might explain the presence of a pseudo lump post-operatively, but only for a period of 48 hours. A seroma would usually resolve within 30 days, although a small minority of cases can last for three months or more. Mr Meleagros explained that a seroma would present as reducible for several weeks because on supination the fluid will drain through the porous mesh and the “floppy” peritoneal wall. Although this point was not properly explored with Mr Durdey, I accept Mr Meleagros’ explanation hereabouts.[54]Finally, Mr Meleagros was forced to accept that, in principle, even a surgeon of Mr El-Hasani’s experience and expertise could “miss” an indirect inguinal hernia in these circumstances.

The Parties’ Submissions

[55]Mr Hand for the claimant submitted that his client and her mother were compelling and reliable witnesses, and that I should find that the claimant noticed the lump in her right groin on returning from hospital after the first operation, and that it was exactly the same as it had been before. Regardless of the exact date, the claimant’s evidence was that she telephoned Mr El-Hasani’s secretary after the operation, and was told that she should report the lump at her outpatients appointment two weeks’ hence. This information was imparted to Ms Grandy-Smith on 2nd August 2010, but the latter, instead of remarking on the presence of the lump and the very least advising that the claimant should monitor it, generally reassured her. The lump persisted thereafter and in early 2011 started to ache at times, prompting the claimant to return to her GP on 31st May, on which occasion she said that the lump had never really gone away and that she had mentioned it at outpatients. A similar account was given to the second surgeon, Mr Kerwat, on 13th June. Finally, the lump resolved straightaway after the second procedure.[56]Mr Hand admits and avers that the appointment on 2nd August 2010 raises important issues for me to resolve. He asked me to find that the claimant has a clear recollection of that encounter, whereas Ms Grandy-Smith has only her brief letter to go on. The text of the letter is consistent with Ms Grandy-Smith not being concerned about the lump, and believing that it was a seroma or something similar. Moreover, the reference to “no evidence of recurrence” is entirely consistent with the issue being raised by the claimant, as the latter says it was.[57]In terms of the expert evidence. Mr Hand relied on the consensus existing between the experts, at least after their oral evidence, to the effect that it was not impossible even for an experienced surgeon to “miss” an indirect hernia. Mr Hand accepted that for this to have happened the peritoneum would have had to have been incompletely dissected and/or reflected, in which circumstances the mesh would not have lain flat.[58]Mr Hand urged me not to attempt to decide this case with reference to the inherent probabilities. The incidence of “missed” hernia and of recurrence are both statistically very unlikely to happen in experienced hands, but neither can be excluded. It is not possible to ascertain the relative risks of either scenario.[59]Finally, Mr Hand submitted that alternative hypotheses such as gas accumulation and seroma do not fit the known facts of this case.[60]Mr Gibson for the defendant asked me to apply the principles germane to fact-finding laid down by the House of Lords in Onassis v Vergottis [1968] 2 Ll Rep 403 and the Court of Appeal in Synclair v East Lancs Hospitals NHS Trust [2015] EWCA Civ 1283. In a famous passage in Onassis, Lord Pearce advised fact-finders to consider the possibility of unconscious bias, wishful thinking, and reliance overmuch on discussion with others. Diminishing recollection and motive are also highly relevant factors. Much more recently, in Synclair, the Court of Appeal advised first instance judges in clinical negligence cases that contemporaneous documents are more likely to be reliable than human recollection, particularly in circumstances where the witness may have an imperfect understanding of the issues and an axe to grind. Regard must also be had to the issue of motive, and to the inherent probabilities.[61]Mr Gibson submitted that the claimant was not a particularly reliable witness who had clearly forgotten certain consultations but had claimed to recall others. The better view on the evidence was that the claimant did not mention any lump to Ms Grandy-Smith because any lump which may have existed in the immediate post-operative period had disappeared by then. By May 2011 the claimant had become convinced that something had gone wrong with her first operation, had consulted solicitors, and could no longer give a reliable and untrammelled account to health service professionals. In any event, the account given to the GP on 31st May was far from being contemporaneous, and it is noteworthy that Mr Kerwat’s original letter following the consultation on 13th June had mentioned “a few weeks” in terms of the time-scale for “recurrence”.[62]In an elaborate and sophisticated submission, Mr Gibson asked me to have recourse to the inherent probabilities and to find that it would be more unlikely for an experienced surgeon to “miss” an indirect inguinal hernia during a procedure of this nature than for one truly to recur, particularly when Ms Grandy-Smith’s consultation is factored into the equation.[63]Mr Gibson asked me to find that both Mr El-Hasani and Ms Grandy-Smith were sound, reliable witnesses, and that the claimant’s expert, Mr Durdey, was inclined to the making of assertions and advocacy.[64]I am grateful to both counsel for their skilled and interesting arguments. Mr Gibson in particular had to face occasionally querulous judicial interventions, but his self-control and aplomb were never dented.

Findings and Conclusions

[65]This case raises a not unfamiliar judicial conundrum. On the one hand the court is confronted by evidence from health professionals who can have no specific recollection of this patient and are therefore compelled to rely on their standard practice and (on the instant facts) relatively sparse contemporaneous records. On the other hand the court has a lay witness, supported to some extent by her mother, who can give a reasonably compelling account of events, and is wholly convinced in her own mind that the first operation was a failure. The unshakeable cornerstone of the claimant’s case is her belief that when she returned home from hospital on 13th June 2010 the lump was exactly the same.[66]I cannot accept Mr Gibson’s suggested approach which is in some way to weigh up and assess the competing inherent probabilities, and to conclude that the combined chance of Mr El-Hasani and Ms Grandy-Smith “missing” (in their different ways) an indirect inguinal hernia must be lower than the chance of recurrence stricto sensu. This approach may well appeal to a mathematician or statistician, and there are occasions where statistics and epidemiology have a role in the judicial decision-making process, but this is not one of them. The difficulty is that there is no comparison of like with like, and no proper basis for placing any sort of figure on the chance of an experienced surgeon making a mistake of the suggested nature. However, that is not to say that the inherent probabilities cannot be viewed more generally and impressionistically, a point to which I will be coming later.[67]There are no “keys” to the notionally unlocking of this case, in the sense that a judicial decision on any one specific point may be said to determine the outcome. All the evidence has to be weighed in the balance at all material times, with the judicial telescope, or microscope, constantly shifting in its power of magnification, bringing certain facts in and out of view, and then back into focus.[68]However, albeit not a “key” in the sense in which I am using the term, it does seem to me that rather a lot hangs on the claimant’s brief consultation with Ms Grandy-Smith on 2nd August 2010.[69]Before I come to that, let me state my general impressions of the witnesses, and where their evidence leads. In my judgment, Mr El-Hasani must be an excellent laparoscopic surgeon with a track-record next to none in the UK. I have examined his cv and it is quite excellent. He came across as passionate in and excited about his work. His powers of explanation are not entirely perfect, because he is prone to slightly frenetic and imprecise formulations, but I note that English is not his first language - he was born in Baghdad and came to this country in the early 1990s.[70]Mr El-Hasani was adamant that he could not have “missed” an indirect hernia on this occasion: more than once during his oral evidence, he said that this was “impossible”. But the experts are agreed that a mistake of this sort, however unlikely, is possible. Should I be concluding that, in refusing to accept the possibility of personal error, Mr El-Hasani was guilty of a degree of dogmatism, or stubbornness, which undermines his evidence more generally? I have thought carefully about this, but ultimately have concluded that I should not. We are all trained to admit to our mistakes, in order to avoid them in future, but I do not believe that Mr El-Hasani was doing more than saying that he simply does not accept that he could have made so egregious an error in a routine operation of this sort. He would have dissected the peritoneum fully, because he always does; he would have applied the mesh, so that it lay flat, because he always does; and having performed this procedure in line with his standard practice, any indirect inguinal hernia would have been in plain sight. In reaching these conclusions, I am not (yet) expressing a view about what happened on this occasion, I am setting out Mr El-Hasani’s state of mind.[71]Ms Grandy-Smith was an impressive witness with an abundance of experience in the field of laparoscopic procedures, including inguinal herniae. She is not the sort of healthcare professional who would have downplayed a patient’s concerns or who would have failed to ensure that an accurate record of a consultation, however succinct, was given.[72]The claimant came across as a pleasant, decent person who would not be prepared to lie to the court to secure a personal advantage. She described herself as “Joe Public”, by which she meant that she had no special medical knowledge but plenty of common sense. However, human recollection is notoriously unreliable, and the claimant’s case faces this forensic difficulty. She claims to have a clear, robust recollection of the events of 2nd August 2010, but in relation to other consultations she accepts that her memory is very patchy. She has kept no contemporaneous record of events, and her diary or aide-memoire started in June 2011 comes, I regret to say, too late to avail her. By then, the matter was turning litigious and solicitors had been instructed. The claimant certainly did tell her GP on 31st May 2011 that the hernia never went away, and that she mentioned this to the nurse at outpatients, but by that stage her mind-set was not merely to blame the first surgeon but to do something about it. I am not holding for one moment that the claimant gave a self-serving, mendacious account to her GP in order better to set up this claim, but I am holding that the claimant’s recollection was altered by unconscious bias and the influence of discussions with her mother, who I did consider was less than an objective, measured witness. There are other aspects of the claimant’s evidence which I will need to address in a moment.[73]As for the experts, each had their strengths and weaknesses. Mr Durdey has an attractive, winning court manner and does not come across as dogmatic and other than reflective. However, the key passages in his liability report were, to my mind, somewhat assertive and jejune, and amount to little more than this – if the claimant’s account of the hernia still being present is to be accepted, then the surgeon must have overlooked it during the course of this procedure. Mr Meleagros’ analysis, on the other hand, was of a different order of quality (see paragraph 49 above). Yet, he was prone to somewhat verbose and elaborate oral explanations, and did not answer counsel’s questions with the requisite brevity and precision when the situation demanded it.[74]In my judgment, the defendant’s evidence is not quite rock-solid but it is sufficiently robust and well-anchored that it would require compelling and consistently reliable evidence on the claimant’s side to undermine it. The claimant’s evidence does not fall into that category.[75]There is a remote possibility that Mr El-Hasani overlooked the presence of an indirect inguinal hernia on 13th July 2010, but I do not believe that he did. Furthermore, I do not accept for one moment that Ms Grandy-Smith would have written the same clinical letter had the claimant advised her that the hernia had not disappeared after the operation. I find as a fact that the claimant had a conversation with Mr El-Hasani’s secretary either a day or a week after the procedure (counter-intuitively, the claimant’s case is in fact stronger if more time elapsed, because the chance of a pseudo lump being formed by gas must be much lower), but this cuts both ways. I entirely agree that it is highly unlikely that the claimant would not have mentioned the lump to Ms Grandy-Smith if it was still there, but I do not accept that the latter would not have recorded the claimant’s concerns had they been voiced to her. She would not have written “has no symptoms”, and even had she believed that the lump was a seroma, she would as a diligent nurse have made some sort of record to that effect, in order that future health professionals could have something to work on should the need arise. I entirely reject Mr Hands’ point that reference to “no evidence of recurrence” is more consistent with the matter having been raised with her by her patient: she expressly denied that in cross-examination, and the purpose of an examination was to exclude all possibilities, however unlikely.[76]I accept that it is possible that the claimant’s abdomen was still slightly swollen on 2nd August. However, Ms Grandy-Smith has written that the claimant’s abdomen was “soft”, and the better view is that there were no signs and symptoms.[77]Overall, I find as a fact that the claimant did not mention the persistence of any lump to Ms Grandy-Smith on 2nd August 2010. The nurse’s evidence, coupled with Mr El-Hasani’s, leads me to conclude either that there was no indirect inguinal hernia at all on 13th July 2010, and it developed later, or that it was repaired on that occasion inasmuch as the peritoneum was fully dissected and the mesh was correctly located. However, I should emphasise – contrary to the view of the experts - that the first hypothesis is far more likely than the second, because had the latter been the case Mr El-Hasani would have seen the indirect hernia presentation and his note would have recorded the presence of a pantaloon hernia. Further, it is not clear to me how and why the mesh could have lain flat if a pantaloon hernia been present. My preference for the first hypothesis is not critical to my decision, and in any event I am not bound to accept expert opinion on an issue, even if there is no dispute about it as between the experts.[78]These conclusions are fortified by the fact that the claimant did not return to her GP until 31st May 2011. She did not come across to me as an acquiescent, reticent individual; I would say that she is quite strong-willed, without being overbearing and overly demanding. In particular, if the claimant believed that the operation had gone wrong from day 1, she would not in my judgment have waited for so long. Any reassurance apparently given by Ms Grandy-Smith would have evaporated fairly quickly.[79]As previously mentioned, the claimant felt it necessary to send an email to Mr Kerwat’s secretary asking him to amend his letter recording that her problems arose several weeks after the procedure. Mr Kerwat’s letter is, of course, consistent with(i) a mistake on his part, or(ii) the claimant having second thoughts when she appreciated the potential significance for her forthcoming litigation of this wording. On balance, I favour the first explanation. By that stage, the claimant had persuaded herself that the lump in her groin remained in exactly the same state at all material times. In the next paragraph I deal with whether there was any lump in the aftermath of the first procedure, and with how long it may have lasted.[80]This leaves the issue of what, if anything, the claimant felt in her groin when she examined herself upon returning home on 13th July 2010. I take Mr Hand’s point that the claimant said in oral evidence that the lump reduced when she lay down, and that it enlarged when she coughed. However, the first matter does not appear in her witness statement, and her recollection is now distorted by ambient noise. As for the second matter, I would be slow to find that the claimant could self-diagnose a hernia, as opposed to a transient entrapment of gas within the space created by the excision of the direct inguinal hernia. In my judgment, the correct and more parsimonious conclusion is that there was a “lump” caused by an infiltration of gas, and that this had dissipated well before the claimant’s appointment with Ms Grandy-Smith on 2nd August. I reject the claimant’s case that the post-operative lump reduced on supination.[81]Mr Meleagros recruited other arguments in support of the contention that the claimant was not suffering from a hernia in the immediate post-operative phase. In the circumstances, it is unnecessary in the circumstances to address these, save to underscore what I said previously about the inherent probability of Mr El-Hasani “missing” a large lump and visualising a smaller one. I do not find that the claimant suffered from a seroma. However, I do find that the claimant suffered from a “recurrent” indirect inguinal hernia (in the sense in which the experts are using this term) which probably started to become apparent, inasmuch as it was palpable to the claimant’s touch, in the spring of 2011.[82]This brings me back to the inherent probabilities. I have considered these ex ante, but they are also compellingly considered ex post, as a means of sense-checking my conclusions. The chance of both health professionals “missing” an indirect inguinal hernia must be assessed as very low. The chance of a recurrence, properly so called, is very low too, although the parties have been working from Mr El-Hasani’s own figures, being figures which indirectly testify to his skill as a surgeon – the 0.1% statistic is very low because Mr El-Hasani’s technique is excellent, making it inherently less likely that he might err on any given occasion. It is inappropriate to say in mathematical terms which range of probabilities is lower than the other. It is appropriate to say that, having regard to all the evidence in the case, the claimant has failed to prove by her evidence that these health professionals both did “miss” any indirect inguinal hernia.[83]For all these reasons, the claimant has failed to persuade me that the defendant’s servants or agents acted in breach of their duty to her.

Quantum

[84]Had I found for the claimant on liability, general damages for pain, suffering and loss of amenity would have been awarded in the sum of £8,000. This covers the pain and discomfort before the second operation, the fact of that procedure and its aftermath, the scarring, and the leg numbness. I understand that the parties have agreed special damages in the sum of £2,500 inclusive of interest.

Disposal

[85]There must be judgment for the defendant.