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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Deakin-Stephenson v Behar & Anor [2024] EWHC 2338 (KB) (13 September 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/2338.html Cite as: [2024] EWHC 2338 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
PHILIPPA CAROLINE DEAKIN-STEPHENSON |
Claimant |
|
- and – |
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(1) NEBIL BEHAR (2) CHELSEA AND WESTMINSTER HOSPITAL NHS FOUNDATION TRUST |
Defendants |
____________________
Andrew Kennedy KC (instructed by Medical and Dental Defence Union of Scotland) for the First defendant
Claire Toogood KC (instructed by Weightmans) for the Second defendant
Hearing dates: 25-27 March, 4-5 and 20 June 2024
____________________
Crown Copyright ©
Deputy High Court Judge Dexter Dias KC :
Section | Contents | Paragraphs |
I. | Brief facts | 4-7 |
II. | Rival cases | 8-11 |
III. | Issues | 12-15 |
IV. | Materials | 16-17 |
V. | Chronology | 18-48 |
VI. | Law | 49-55 |
VII. | Assessment of Ms Deakin-Stephenson | 56-102 |
VIII. | Assessment of claimant's witnesses | 103-150 |
IX. | Assessment of Mr Behar | 151-172 |
X. | Assessment of expert evidence | 173-222 |
XI. | Behar Issue 1: Referral | 223-45 |
XII. | Behar Issue 2: Transfer | 246-64 |
XIII. | Behar Issue 3: Hartmann's procedure | 265-91 |
XIV. | Behar Issue 4: Risk | 292-303 |
XV. | Behar Issue 5: Delay | 304-05 |
XVI. | Behar Issue 6: Causation | 306-16 |
XVII. | Trust Issue 1: Vicarious liability | 317-39 |
XVIII. | Trust Issue 2: Policy | 340-45 |
XIX. | Disposal | 346-52 |
§I. BRIEF FACTS
§II. RIVAL CASES
Ms Deakin-Stephenson's case
Mr Behar's case
The Trust's case
§III. ISSUES
The first defendant
Breach of duty
- Did the claimant and/or members of her family ask Mr Behar for a referral to a colorectal surgeon or a second opinion? [Behar Issue 1 – "Referral"]
- Did Mr Behar instigate and induce the claimant's transfer to private care? [Behar Issue 2 – "Transfer"]
- Did Mr Behar inform the claimant on 6 November 2016 that a Hartmann's procedure was a surgical option? [Behar Issue 3 – "Hartmann's procedure"]
- Did Mr Behar warn the claimant of the risks and benefits of a laparoscopic lavage and a Hartmann's procedure? [Behar Issue 4 – "Risks"]
- Did Mr Behar negligently delay surgery from the evening of Sunday 6 November to the morning of Monday 7 November 2016? [Behar Issue 5 – "Delay"]
Causation
- Did any breach of duty by Mr Behar cause injury to the claimant? [Behar Issue 6 – "Causation"]
The second defendant
- Is the second defendant vicariously liable for any negligent acts and omissions of Mr Behar after the claimant was transferred to the private wing of the Hospital? [Trust Issue 1 – "Vicarious liability"]
- Did the second defendant fail to possess or operate a policy to ensure that medical cases are referred to the appropriate specialist teams in good time? [Trust Issue 2 – "Policy"]
"... a judgment is not a summing-up in which every possible relevant piece of evidence must be mentioned."
§IV. MATERIALS
(1) Trial bundle: 774 pp. and supplementary bundles
(2) Core medical records: 667 pp.
(3) Claimant's full medical records: 3774 pp.
§V. CHRONOLOGY
2016
Day 1: Wednesday 2 November
Day 2: Thursday 3 November
Day 3: Friday 4 November
Day 4: Saturday 5 November
Day 5: Sunday 6 November
"Laparoscopic washout of diverticulitis +/- sigmoid colectomy + stoma only if absolutely needed"
"bleeding, infection, DVT, PE, chest infection"
Day 6: Monday 7 November
"Operation: "Laparoscopic washout of diverticular perforation with release of SB adhesion and bladder adhesion and Omental transposition. (5mm visiport entry and two further 5mm ports).
Findings: "Proximal sigmoid diverticula phlegmon with adhesions to a loop of small bowel and bladder. Free Fluid with small amount of pus… No faeces seen. Colon not dilated.
Procedure: "Free fluid washed first. Small bowel which could cause obstruction or fistulation was detached with wash. Dome of bladder freed of phlegmon sufficiently to avoid colovesical fistula (urinary frequency pre op). Area of perforation inspected; No faeces seen, no significant defect in bowel wall, but minimal amount of pus ooze on pressure. A tongue of Omental brought over from upper abdomen and sutured with vicryl to appendences epiploic of Sigmoid colon beyond the perforation so that the omentum now lies between perforation site and small-bowel. See photos. Further wash, drain Robinson 20ch to pelvis secured with silk ports out under vision. Haemostasis. 0 vicryl to umbilical defect. 3.0 Monocryl to skin and steristrips."
"consented for lap washout with Hartmann's if needed am [in the morning]".
Day 7: Tuesday 8 November
Day 8: Wednesday 9 November
Friday 11 November
Sunday 13 November
17 November
29 November
6 December
2017
1 January
23 January
13 March
26 April
9 June
18 July
• 2020, 3 August: claim form filed on behalf of Ms Deakin-Stephenson.
• 2021, 8 October: Amended particulars of claim filed.
• 2022, 10 March: Mr Behar's defence filed.
• 2022, 22 March: The Trust's defence filed.
• 2023, 31 January: Directions order of Master Sullivan (following costs and case management conference on 25 November 2022) setting down trial window for autumn 2023, ultimately varied for trial in March 2024.
§VI. LAW
(1) Standard of care
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art............in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. ..........the real question .........is whether the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion................ he 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..............Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
"The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce [1999] PIQR P53, subject to the refinement made by the High Court of Australia in Rogers v Whitaker 175 CLR 479, which we have discussed at paras 77—73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."
"… the correct legal test to be applied to the question of what constitutes a reasonable alternative treatment is the professional practice test found in Hunter v Hanley 1955 SC 200 and Bolam [1957] 1 WLR 582."
(2) Fact-finding
(1) The burden of proof rests exclusively on the person making the claim (she or he who asserts must prove), who must prove the claim to the conventional civil standard of a balance of probabilities;
(2) Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ);
(3) The court must survey the "wide canvas" of the evidence (Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26] per Dame Elizabeth Butler-Sloss P (as she then was)); the factual determination "must be based on all available materials" (A County Council v A Mother and others [2005]EWHC
Fam. 31 at para 44, per Ryder J (as he then was));
(4) Evidence must not be evaluated "in separate compartments" (Re T [2004] EWCA Civ 558 at para 33, per Dame Elizabeth Butler-Sloss P), but must "consider each piece of evidence in the context of all the other evidence" (Devon County Council v EB & Ors. [2013]EWHC
Fam. 968 at para 57, per Baker J (as then was)); such "context" includes an assessment of (a) inherent coherence, (b) internal consistency, (c) historical consistency, (d) external consistency/validity – testing it against "known and probable facts" (Natwest Markets Plc v Bilta (UK) Ltd [2021] EWCA Civ 680 at para 49, per Asplin, Andrews and Birss LJJ, jointly), since it is prudent "to test [witnesses'] veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case" (The Ocean Frost [1985] 1 Lloyd's Rep 1 at p.57, per Robert Goff LJ)[1];
(5) The process must be iterative, considering all the evidence recursively before reaching any final conclusion, but the court must start somewhere (Re A (A Child) [2022] EWCA Civ 1652 at para 34, per Peter Jackson J (as he then was)):
"… the judge had to start somewhere and that was how the case had been pleaded. However, it should be acknowledged that she could equally have taken the allegations in a different order, perhaps chronological. What mattered was that she sufficiently analysed the evidence overall and correlated the main elements with each other before coming to her final conclusion."
(6) The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (In re B [2008] UKSC 35 at para 32, per Lady Hale);
(7) The law invokes a binary system of truth values (In re B at para 2, per Lord Hoffmann):
"If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."
(8) There are important and recognised limits on the reliability of human memory: (a) our memory is a notoriously imperfect and fallible recording device; (b) the more confident a witness appears does not necessarily translate to a correspondingly more accurate recollection; (c) the process of civil litigation subjects the memory to "powerful biases", particularly where a witness has a "tie of loyalty" to a party (Gestmin SCPS S.A. v Credit Suisse (UK) LtdEWHC
3560 (
Comm)
at paras 15-22, per Leggatt J (as then was)); and the court should be wary of "story-creep", as memory fades and accounts are repeated over steadily elapsing time (Lancashire County Council v C, M and F (Children – Fact-finding) [2014] EWFC 3 at para 9, per Peter Jackson J ("C, M and F");[2]
(9) The court "takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning" (Re BR (Proof of Facts) [2015] EWFC 41 at para 7, per Peter Jackson J); "Common
sense, not law, requires that … regard should be had, to whatever extent appropriate, to inherent probabilities" (In re B at para 15, per Lord Hoffmann);
(10) Contemporary documents are "always of the utmost importance" (Onassis v Vergottis [1968] 2 Lloyd's Rep. 403 at 431, per Lord Pearce ("Onassis")),[3] but in their absence, greater weight will be placed on inherent probability or improbability of witness's accounts:
"It is necessary to bear in mind, however, that this is not one of those cases in which the accounts given by the witnesses can be tested by reference to a body of contemporaneous documents. As a result the judge was forced to rely heavily on his assessment of the witnesses and the inherent plausibility or implausibility of their accounts." (Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at [80], per Moore-Bick LJ);
And to same effect:
"Faced with documentary lacunae of this nature, the judge has little choice but to fall back on considerations such as the overall plausibility of the evidence" (Natwest Markets at para 50).
(11) The judge can use findings or provisional findings affecting the credibility of a witness on one issue in respect of another (Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408 ("Arkhangelsky").[4]
(12) However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness's evidence worthless. They are simply relevant:
"If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything." (R v Lucas [1981] QB 720, per Lord Lane CJ);
Similarly, Charles J:
"a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B..." (A Local Authority v K, D and L [2005]EWHC
144 (Fam) at [28]).
What is necessary is (a) a self-direction about possible "innocent" reasons/explanations for the lies (if that they be); and (b) a recognition that a witness may lie about some things and yet be truthful "on the essentials … the underlying realities" (Re A (A Child) (No.2) [2011] EWCA Civ 12 at para 104, per Munby LJ).
(13) Decisions should not be based "solely" on demeanour (Re M (Children) [2013] EWCA Civ 1147 at para 12, per Macur LJ); but demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371, per Ryder LJ:
"a witness's demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable" (at para 23); so long as "due allowance [is] made for the pressures that may arise from the process of giving evidence" (at para 25).
But ultimately, demeanour alone is rarely likely to be decisive. Atkin LJ said it almost 100 years ago (Societe d'AvancesCommerciales
(SA Egyptienne) v Merchans' Marine Insurance Co (The "Palitana") (1924) 20 Ll. L. Rep. 140 at 152):
"… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
(3) Conflict in expert evidence
"where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence" (proposition 3)
"This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process."
§VII. ASSESSMENT OF MS DEAKIN-STEPHENSON
Approach to assessments
Ms Deakin-Stephenson
"How could I ask those questions, there was no time, when I got a chance to ask the questions, the meeting was over."
"I said I had no complaint and that you had been amazing looking after me and saving my life."
"Following the meeting at c& w hospital on 26 April I am sadly and with regret raising a formal complaint as questions were not answered in relation to my letter and care, or medication and why I was not operated on immediately."
"1) on examination of the blood results from the time of my admission to being operated on as an Emergency on Monday 7 November 2016, including the first CT scan showing a perforated colon, it is clear that I had sepsis and therefore the " conservative" approach not to operate until the Monday 7 November 2016 was inappropriate treatment. I should have been operated on within 24 or mac 48 hours from admission."
"4) please provide me with the consultants treatment plan after admission into the hospital and who was making the decisions on me between admission and the first operation as to what medication of antibiotics I was to receive."
"I am now raising this as a formal complaint to the chief executive of Chelsea & Westminster Hospital and for the subsequent consequences that led to the 1st operation not taking place until Monday 7th which then failed 36 hours later, resulting in the Hartmann procedure and septic shock on 9 November 2016 and the life threatening critical illness in ICU thereafter which include multiple organ failure and full life support."
"I remember being very tearful explaining to him how my abdomen and tummy felt and the pain in my bladder. I recall telling him I felt that something felt really not quite right, and it was different, but worse than yesterday. I told him I was clearly getting worse, not better. I asked the doctor where Mr Behar was, but he said he was not on duty I asked again to see a colorectal surgeon and he said he would pass the message on to Mr Behar."
"My sister, Joanna explained to Mr Behar that she was extremely concerned about the diagnosis and therefore the proposed treatment plan, as she herself had had previous episodes of diverticulitis that had resulted in her own hospital admission. She had consequently been referred and seen a colorectal surgeon and upon reviewing her, made a recommendation for her to have a Colectomy, so to avoid further diverticulitis episodes and to reduce and remove the risk of a perforation, which her Colorectal consultant had said, could end up being a significant medical emergency. She told Mr Behar this and informed him that she had some personal knowledge; therefore, she told Mr Behar that upon the advice of her Colorectal surgeon, she underwent the elective surgery two years earlier and the diverticular area of her colon was removed and her colon was then reattached back together; consequently, her elective surgery had been successful."
"a live organ that would sit outside my body."
"3 November 2016
The patient (claimant) had asked for a TED stocking and pointed out to the nurse that 'you have not given it to me'.
The patient 'insisted' on receiving the stocking 'immediately'.
The patient stated 'why didn't I give the right medication before when she asked me'. When the nurse apologised and explained, the patient 'complained that I have been very rude to her'.
4 November 2016
The patient wants to go down and 'have a fag and fresh air' before doing the catheter. Afterwards, although encouraged by nursing staff to be catherised, 'patient still refused and said she will have it later'.
[later on 4th]
The patient 'still refusing to have her urinary catheter inserted, she said she's changing her mind.' [A member of staff] 'tried to explain to the patient about the urinary catheter but still the patient wants to think about it'."
"Q: You said you did not know any colorectal surgeons, but had been seen by four surgeons?
A: I did not know any in November 2016."
"I had never before had any bowel or intestine issues, which made it [the diagnosis of need for surgery on Sunday 6 November] even more shocking."
"I asked Mr Behar about the diverticulitis and how had that happened, as I had never before had any problems with my bowels or colon."
"BUPA had asked me to confirm to them what surgery was proposed by Mr Behar. On asking Mr Behar who was near the nurses' station; he stated it would be a Laparoscopic washout, possibly in the morning. I then called BUPA back, as requested and told them."
"I don't have an answer to the question, it's a good point you make. I agree one way of looking at it is that I knew BUPA were covering the costs."
Conclusion on Ms Deakin-Stephenson
"1st January 2017
I was admitted in c&w by ambulance on 2nd November 2015 with severe abdominal pain. While I have no recollection due to amnesia for the following two and half weeks, Mr Behar operated on me twice and literally saved my life from perithinitus and sceptis after suffering from severe divictilitus. Mr Behar and the extra ordinary nursing and medical team who cared for me 24/7 when I was transferred into I the intensive care department after suffering apparently multiple organ failour and being on life support, literally saved my life. My family were able to speak personally to Mr Behar about my illness even when I was on life support. When eventually I came round I remember meeting him (I thought it was the first time I had met him) and he very kindly explained to me over the following days what had happened. While it is still very shocking that I was so very ill, mr Behar did not give up on me at anytime or indeed any of the increasingly nursing and medical staff and the micro biologists and to them all, I thank them from the bottom of my heart for giving me my life again and to be back home recovering with my family for Christmas. Mr Behar, thank you for saving my life and being so unbelievably amazing. To you all at C&W and the NHS you are all amazing, and thank you does not seem to be enough, but it is from the bottom of my heart."
"Recommend 5 stars
Listen 5 stars
Trust 5 stars"
§VIII. ASSESSMENT OF CLAIMANT'S WITNESSES
Mr Stephenson (former partner)
Example 1
Ms Deakin-Stephenson
"Everything Mr Behar had said appeared very contractionary"
Mr Stephenson:
"None of it made any sense to me and appeared to be contractionary tocommon
sense"
Example 2
Mr Stephenson:
"it was defiantly understood by us, that Pippa would remain an NHS patient"
Mrs Deakin:
"I don't recall who told us this, but it was defiantly not Mr Behar"
Mrs Deakin (mother)
"that he would not know how to treat her until he got her into surgery and the treatment would depend on what he found in the surgical procedure. My husband might have asked him what the other thing that could have happened aside from the washout. The discussion was quite a long time."
"I repeated what my daughter said to get a second opinion. Mr Behar's response was that there was no one else in the hospital and they could not do that."
"I think a mistake was made in her treatment and having seen what my daughter has had to live for a number of years is heart-breaking."
"At no time on Monday 7th November either before or after the surgery, did we see Mr Behar despite being in Pippa's room."
"I note that the doctor daily notes also confirm Mr Behar did not see Pippa prior to surgery in her room and there was no ward round, which I find extremely unusual."
"Pippa was taken down to surgery and we still had no idea what surgery was going to be performed or by whom."
Mrs Joanne Ingledow (sister)
"Hi mummy
You and daddy have been so wonderful reassuring [to] Pip, so good that you have been with her today, it will have meant so much to her. I've found out that Dr Oliver Warren is also at Chelsea and Westminster and a very senior Colorectal surgeon with amazing reviews. He also practices at the London clinic and he is definitely the man for an extra opinion or discussion … Maybe he's already involved in Pip's case? But worth talking to. His secretaries tel number is 07XXXXXX. I'll email his details to you & daddy. Try to sleep I'm sure she's going to make a full recovery and will soon be bouncing around again!
[signed affectionately] Joanna."
"Q: The text is a strange way of framing it that he may be already involved in her care when you had been crying out for a colorectal surgeon
A: I don't know why I said a colorectal surgeon may be involved in our care."
"… we were all taken for a complete ride, lied to and manipulated and that is because of [Mr Behar's] 'ego' and desire to undertake what we now know to be his own 'research' surgery … Pippa could have died."
"Mr Khan also said I might need an ileostomy for a few months and I was given the opportunity to see a stoma nurse, I use the word now, but no one used that word. It was explained to me that it involved a bag attached to my skin to catch the fluids and it would be repaired in future."
"The nurse showed me the bag and lots of literature to read about the ileostomy."
Conclusion on claimant's witnesses
"I was appalled by the state of her body when she was discharged as she had an open wound right down her body, she was so traumatised as we were all were, as a family we were so traumatised by what had gone on and sitting in ICU, we could not understand what had happened."
Mrs Ingledow: "I invited [Mr Stephenson] and [his son] … for supper to have roast chicken with me and my parents."
Mr Stephenson: "Pippa called on facetime while we were eating Roast Chicken."
Mrs Deakin: "we were all having supper in the kitchen. We were eating roast chicken."
Mrs Deakin: "My daughter was told to contact BUPA who wanted verification from the admitting surgeon as to what operation Pippa was to have"
Mr Stephenson: "apparently BUPA wanted more information from Mr Behar and asked Pippa to find out what was the exact treatment plan for her from Mr Behar was (sic), and what surgery he was planning to perform."
"Pippa and Joanna had no knowledge of the Chelsea Wing which they discovered much later was apparently a private wing in the main hospital …"
"she had never had any previous problems with her colon."
"Due to the medical situation that developed following [her] November 2016 admission to hospital, Pippa withdrew from our relationship."
§IX. ASSESSMENT OF MR BEHAR
"Written in retrospect Behar
seen last night with second CT result suggestive of further spread of sepsis with now free air and pelvic
fluid
patient remains well
dw patient need for surgery
consented for lap washout with Hartmans if needed am"
"11.31am
Behar Wr review
well
bowels opened twice
for wash today"
"Plan: tomorrow morning CT Abdomen and pelvis to check progress as agreed by radiology."
"Radiologist called regarding CT abdo for patient, they said its too soon for patient to have the CT scan today, asked if we could liaise with the consultant looking after the patient to discuss regarding the matter. Spoken with Mr Behar regarding the radiologist's suggestion that the scan is too soon as patient had a previous one last thursday. Dr Behar said he will speak with the radiologist; gave him the radiologist phone number."
"Received a call from Radiology requesting for patient to come down for CT verified with radiology as plan was to have her CT tomorrow; On-call radiologist said that consultants changed their mind and for patient to have CT this afternoon."
§X. EXPERT EVIDENCE
(1) Whether Mr Behar can be considered a colorectal surgeon;
(2) Whether Mr Behar's delaying of surgery from the evening of Sunday 6 November to Monday 7 November 2016 was in breach of duty;
(3) Whether, if a referral had been made to a colorectal surgeon, the surgeon would have given a second opinion or taken over the care of the claimant;
(4) What were the reasonable alternative or variant treatments in light of the CT scan results obtained on Sunday 6 November 2016.
Mr Hartley
"Most emergency surgery is gastrointestinal surgery, Diverticular disease is a verycommon
emergency; I would estimate that gastrointestinal cases account for around 60% of all emergency cases. Accordingly, Mr Behar would be considered to have the relevant experience and training to treat the claimant."
"The emergency surgeon is expected to deal with acute presentations for a full range of GI conditions, that is what an emergency surgeon would be employed for."
"come in most days of the week. Most patients will be treated with non-operative antibiotics. It is a small number, perhaps one in ten of diverticulitis cases require surgery. It seems like more than two per year I have to deal with surgery for diverticulitis. The main part of my practice is dealing with elective colorectal surgery, including bowel and cancer surgery."
"LM will say that the role of a general/emergency surgeons is not as a triage/emergency admission service tasked with managing the patients initially but transferring them to other 'specialist surgeons' for definitive care. Emergency consultant surgeons are consultants with equivalent status to 'specialist' surgeons. They manage all aspects of the care of emergency patients from admission through to discharge."
"There should have been failure of treatment and the requirement for further emergency surgery. I would say that consent form is not evidence of adequate warning of risks."
"I do not think doubts in patient's mind about surgery is a reason to delay surgery. I agree Mr Behar appears to spend quite some time with claimant on Sunday. I would have been extremely uncomfortable at deferring surgery at that time. I do not accept it was reasonable to defer to the following day."
"In 2016, I would not have offered a laparoscopic lavage. As a bowel surgeon I did not see how washing out the abdomen would deal with the hole in the bowel. The safest thing to do is take out the diseased section. The colon behaves in a different way than a duodenal ulcer. The risks of a colonic perforation are life-threatening through sepsis and septic shock. The colon does not behave like other organs. We try to respect that and try to remove the problem rather than patch it up in some way."
"Offer either laparoscopic lavage or resectional surgery (see recommendation 1.3.27) to people with diverticular perforation with generalised peritonitis after discussing the risks and benefits of the 2 options with them (see table 3)."
"But I did not follow it with a large body of colleagues and the professional body has subsequently come down against using lavage."
"If [the claimant] is well and settled, that is a good time to deal with the problem rather than wait for a deterioration. Surgery was inevitable. I would have dealt with it that night. I accept that colorectal surgeons would be less experienced in lavage. If it had been suggested that lavage would be done on claimant, I would have taken charge and ensure the correct thing was done – which was a Hartmann's."
"I explained to you that there were 2 options to proceed with; both surgical. One was washing out the infection laparoscopically to allow infection to settle without removing the colon and sparing you a colostomy (I have warned you that this procedure may, during surgery or afterwards, necessitate colectomy nevertheless if the contamination was extensive). The other was an outright removal of colon with Hartmans Procedure and colostomy. You have opted for the laparoscopic washout of the infection wanting to avoid a stoma. At the time of laparoscopy the contamination proved to be minimal and the washout was sufficient without proceeding to Hartmans Procedure."
"This form is a consent form for a laparoscopic lavage and Hartmann's if required, but does not tell us if a Hartmann's was offered as an alternative. It is consistent with one limb of the approach, but does not tell us whether Hartmann's was discussed as an alternative."
Mr Meleagros
"Most of my colleagues are reluctant to proceed with lavage, and there is no accreditation for lavage. But I would say Mr Behar was accredited and developed a sub-specialism in it. The Hartmann's procedure is not done by specialist colorectal surgeons. The guidelines are for everyone who performs Hartmann's. Therefore, the majority of Hartmann's is carried out by non-specialist colorectal surgeons. In my hospital, the emergency surgeons eventually took over virtually all the Hartmann's. Hartmann's is such a drastic thing because of the stoma and because of the distressing experience this produces for the patient."
Conclusion: expert evidence
"LM agrees that laparoscopic lavage was reasonable and would be supported by responsible body of surgeons, based on some of the relevant scientific literature available in 2016. The WSES guideline was published in 2016 but it is not known whether this was before or after the index event in November 2016. LM defers to the Court in the matter. In his view the 1st Defendant would have been aware of the articles published prior to the WSES guideline (2013-2015) and which are analysed in the guideline. LM will say that the plan was reasonable given the 1st Defendant's experience with laparoscopic lavage, in his capacity as a consultant emergency and colorectal surgeon."
"JH will say that the Claimant needed surgery. In his view a Hartmann's procedure was the standard of care in 2016 and remains so today. However in light of the NICE guidance and other guidelines he accepts that a responsible body of surgeons would have offered lavage as an alternative."
"The Hartmann's procedure is not done by specialist colorectal surgeons. The guidelines are for everyone who performs Hartmann's. Hartmann's are carried out by non-specialist colorectal surgeons and the majority of Hartmann's are performed by non-specialist surgeons."
"He takes the view that adequate consent would involve presenting Hartmann's procedure as a safer and more definitive procedure."
"A Hartmann's was and remains the standard way of dealing with it. In 2016, I would not have offered a laparoscopic lavage. As a bowel surgeon I did not see how washing out the abdomen would deal with the hole in the bowel. The safest thing to do is take out the diseased section. The colon behaves in a different way than a duodenal ulcer. The risks of a colonic perforation is life-threatening through sepsis and septic shock. The colon does not behave like other organs. We try to respect that and try to remove the problem than patch it up in some way."
"JH will add that both ACPGBI and ASCRS guidelines (the professional bodies of specialist colorectal surgeons in the UK and USA) specifically recommend against relying upon laparoscopic lavage in this scenario."
"LM is familiar with the ASCRS and the ACPGBI guidelines, which were published after the index event in 2020 and 2021 respectively. He has already alluded to the discrepancies between, on the one hand, these guidelines and, on the other hand, the NICE guidelines which were published in November 2019 and the ESCP guidelines published in 2020. He does not have an explanation why four sets of guidelines, presumably based on analysis of the same scientific literature, arrived at different conclusions. However, as set out in his expert report and elsewhere in this Joint Statement, both ASCRS and ACPGBI provide a more nuanced opinion regarding laparoscopic lavage (see paragraph 5.40 in LM's expert report and LM's answer to question 28 above). Furthermore, the more recent article reporting on long-term results of the randomised SCANDIV trial (2021) concludes that the outcomes of laparoscopic lavage are not unfavourable compared to Hartmann's procedure (see article and conclusions -reference in LM's expert report)."
"I am a qualified colorectal surgeon and the management of diverticulitis was a large part of my day-to-day practice."
§XI. BEHAR ISSUE 1
(Referral)
- Did the claimant and/or members of her family ask Mr Behar for a referral to a colorectal surgeon or a second opinion?
- 3 November 14:45 hours: the claimant and her sister directly to Mr Behar
- 4 November 09:18 hours: the claimant and her sister directly to Mr Behar
- 5 November: the claimant directly to SpR Walsh
- 5 November: the claimant's former partner Mr Stephenson directly to SpR Walsh
- 6 November 15:00 hours: the claimant directly to Mr Behar in presence of parents
- 6 November 15:40 hours: the claimant's late father to Mr Behar
- 6 November 21.30 hours: the claimant directly to Mr Behar
- 6 November 22.30 hours: the claimant asking Mr Behar to call Mr Oliver, following text from sister
- 6 November 22:50 hours: the claimant directly to Mr Behar in presence of parents, asking to speak to Mr Oliver Warren that night.
"If you want someone else to talk to I think he's the man!! … I'm sure he and Dr Behar Work [sic] must work together!"
Discussion
"I do recall having a conversation with the Claimant and/or her sister regarding her treatment plan and a course of treatment the Claimant's sister previously underwent (elective laparoscopic resection of the colon), however I advised that this would not be a realistic option for the Claimant given her presentation and that she was not an elective case."
"I am a qualified colorectal surgeon and the management of diverticulitis was a large part of my day-to-day practice. Had the Claimant requested for another colorectal surgeon to assess her I would have not denied her this request."
"I said please can I have a referral for a second opinion with a colorectal surgeon for all the treatments. I asked if he knew Oliver Warren but he was not on duty on Sunday night."
"I understand from the medical records that the Claimant attended Professor Tekkis on 8 March 2017 and the consultation did not go well according to her email to me on 9 March 2017, which I responded to same day and arranged a referral to another Colorectal Surgeon, Mr Oliver Warren at the suggestion of Professor Tekkis. The Claimant was a memorable patient and we had good rapport, as she referred to me as her saviour at that time and wrote a very nice review of my care online."
"please note, I am unbelievably and very sincerely grateful to Mr Behar as well as the entire medical team at Chelsea and Westminster for saving my life"
"I should have been operated on immediately and if Mr Behar, while he is I am sure an excellent general emergency surgeon, he failed to pass me over as a patient to a colonoscopy specialist who should have performed the first operation and immediately".
Conclusion: Behar Issue 1
§XII. BEHAR ISSUE 2
(Transfer)
- Did Mr Behar instigate and induce the claimant's transfer to private care?
(1) The claimant's evidence that she was not aware of the Chelsea Wing;
(2) In consequence such knowledge could only have come from a suggestion by Mr Behar;
(3) There is no note by Mr Behar of his further interaction with the claimant after the 14:45 hours consultation;
(4) The fact that such interaction took place is evidenced by the Patient Request for Transfer dated 3 November and timed at 15:30 hours. This handwritten form was not completed by or signed by the claimant. The clinical information in that form can only have been provided by Mr Behar;
(5) The Healthcare invoice dated 3 November 2016 was created by or on behalf of Mr Behar. This is an invoice charging BUPA for an initial / pre-operative consultation. There is no note of such a private consultation on 3 November. In his oral evidence Mr Behar was unable to say when this private consultation took place and the contents of that consultation;
(6) That initial private consultation, if it took place, must have taken place before BUPA authorisation as evidenced by the patient transfer form timed at 15:30 hours. BUPA authorisation for private treatment was given at 16:14 hours.
(7) In his witness statement, Mr Behar omits to make any reference to all this activity on 3 November concerning private treatment or transfer;
(8) In the CW journal, Mr Behar actively advertises the provision of private treatment through a dedicated service for adult emergency general surgery for patients with medical insurance.
"accommodation and/or services provided as a private patient at the Chelsea and Westminster Hospital"
"181. Joanna: Yeah, on Thursday. She was put on nil by mouth, and she was told that she'd almost certainly be having open surgery. I was very shocked because I knew exactly what that meant, having had issues myself. Trying to reassure her, of course she remembers nothing of this. So, she then went from acute assessment ward on the Friday, into the Chelsea wing, because it was thought that she'd be more comfortable there, sort of thing.
182. [Over speaking]
183. Joanna: Yeah, because you were covered by BUPA"
"I believe I was the first full-time emergency surgeon in the UK. The post was set up because we were doing very badly. Chelsea had the foresight that emergency [surgery] should have more dedicated care without the distraction of elective. I thought emergency patients were getting a rough deal. I gave up elective work and dedicated my care to emergency."
"I never try to persuade patients to move to private. It's unethical because the patient is entitled to free NHS care. And to remove the patient from that environment is completely unethical."
"The patient asked me what the difference with private was. I said they are more likely to be private room. The care would be the same and they would get my services out of NHS hours, so I would keep [her case] after 5pm and not the on-call consultant. The nurses could call me at all hours from the private wing and the same consultant would continue to care."
Conclusion: Behar Issue 2
§XIII. BEHAR ISSUE 3
(Hartmann's procedure)
- Did Mr Behar inform the claimant on 6 November 2016 that a Hartmann's procedure was a surgical option?
Sub-issue (1)
"pips got to have an operation you need to go back to london [crying emoji]"
"If the court accepts the evidence of the Claimant and her mother that she was not seen by Mr Behar on the morning of 7 November before her surgery, then by his own account he did not complete the consenting process."
Sub-issue (2)
"233. Nebil Behar: Sunday night, that's right, the Sunday. We had a chat about the options at that point. We said, it's probably not a good idea to keep insisting on antibiotics, even though you were only slightly worse, you're not generalised peritonitis, or septic shock or anything like that. You had some pain and we said, we'd better do something now. We discussed two options at that point. We said, either we can do a laparoscopy keyhole, wash off the area and we'll only find out if that's possible at the time of surgery, or we remove the bowel and give you a stoma. I said, perhaps on this occasion, we should even remove the bowel straight out and not worry about the wash, but wash is something I'm happy to do, because that's what I do, and I see it work a lot."
"(My sister confirms that I signed for both types of operation)"
"(note please: I have no memory of any of this)"
"(My sister confirms that I signed consent for emergency surgery for both types of operations on 6th November 2016 when apparently my parents were visiting me, following a 2nd CT scan earlier in the day: I apparently consented to both types of operation – again I have no memory of this.)"
"The scan showed a progression of disease with free air in the peritoneum. I explained to the Claimant that that same day, who was still reasonably well with a soft abdomen at this stage, that an operation would now be needed to treat the infection. I gave her the two options of a laparoscopic approach, which could end with a simple wash and drain, giving her a lower risk of mortality and morbidity and no stoma, or straight to laparotomy and Hartman's Procedure which would entail removing the diseased sigmoid colon and forming and end colostomy if frank perforation was to be encountered. I recall the Claimant being very distressed at the idea of surgery, and especially the stoma. We involved her family in the discussions; however, the Claimant still struggled to come to a decision as to what surgery route to go down. As she was relatively well, I did not want to rush her into a decision she would not be content with and I gave her time to think overnight. I did not feel it was necessary to take her to theatre that same night. The consent process began at this time"
Sub-issue (3)
"It would be for a Court to decide why the addendum of 'only if absolutely needed' was added to the Hartmann's procedure as this is not standard surgical practice. It would be for a Court to decide whether this was surgical bias, or the patients request."
"I do not remember when I started filling the form. Sometimes for expediency you start writing. It is not unusual for doctors to write things in advance so you can have a free discussion with the patient. It's possible that I wrote the form in advance at the nurses station. [That is] I would have written the first 1.5 lines, but I think the '+ stoma only if absolutely needed' is likely from her wishes because she was averse to the stoma. It might have been "+ stoma" [already written] and all I needed to add was 'if absolutely needed' was added because of her wishes."
"the Claimant was appropriately consented with respect to the surgical options listed as the proposed procedure, in the consent form. She was not fully consented with regards to the risks and complications of laparoscopic lavage, namely failure to control sepsis and need for a secondary procedure in the form of Hartmann's resection."
Conclusion: Behar Issue 3
"Subsequently your attack of diverticulitis failed to settle as evidenced by increased pain and rise in inflammatory markers. This is uncommon and unfortunate but was picked up without significant deterioration in your health, early. At that point I reviewed you and discussed surgery. I explained to you that there were 2 options to proceed with; both surgical. One was washing out the infection laparoscopically to allow infection to settle without removing the colon and sparing you a colostomy (I have warned you that this procedure may, during surgery or afterwards, necessitate colectomy nevertheless if the contamination was extensive). The other was an outright removal of colon with Hartmans Procedure and colostomy. You have opted for the laparoscopic washout of the infection wanting to avoid a stoma. At the time of laparoscopy the contamination proved to be minimal and the washout was sufficient without proceeding to Hartmans Procedure."
§XIV. BEHAR ISSUE 4
(Risk)
- Did Mr Behar warn the claimant of the risks and benefits of a laparoscopic lavage and a Hartmann's procedure?
Discussion
"LM She was not fully consented with regards to the risks and complications of laparoscopic lavage, namely failure to control sepsis and need for a secondary procedure in the form of Hartmann's resection. She was not fully consented with regards to the risks and complications of Hartmann's procedure. If the Court accepts that the Claimant was anxious regarding the surgery (see nursing entry 07/11/2016 at 03:41 hours), the 1st Defendant was acting according to the so-called therapeutic exemption in Montgomery by not disclosing information that would be detrimental to the Claimant's health, in this case her mental health."
"JH will defer to the Court for a finding of fact. If the Claimant was simply consented for a lavage with a plan to proceed to a Hartmann's only if faeces were found then his opinion would be that the consent process was not appropriate."
"JH will say that he cannot answer this question from the records. He will defer to the Court for a finding of fact.
LM will say that there are no details in the record regarding how the 1st Defendant counselled the Claimant, other than the mention of a stoma in the consent form."
"I haven't recorded further surgery as a further risk on the consent form, but we discussed it."
"I will be guided by your judgment if you believe and think he [another surgeon] is the best for me, then I will be guided by you."
Conclusion: Behar Issue 4
Conclusion on consent overall
§XV. BEHAR ISSUE 5
(Delay)
- Did Mr Behar negligently delay surgery from the evening of Sunday 6 November to the morning of Monday 7 November 2016?
Conclusion: Behar Issue 5
§XVI. BEHAR ISSUE 6
(Causation)
- Did any breach of duty by Mr Behar cause injury to the claimant?
"She would have avoided the catastrophic events that befell her on the night of 08.11.16, admission to ICU, multiple organ failure, near-death and discharge with an open wound and sepsis and her injuries that continue to this day as a result."
Conclusion: Behar Issue 6
§XVII. TRUST ISSUE 1
(Vicarious liability)
- Is the second defendant vicariously liable for any negligent acts and omissions of Mr Behar after the claimant was transferred to the private wing of the Hospital?
"not everyone involved in patient care falls necessarily to be treated as an employee of the hospital or health authority. In the absence of a relationship closely akin to employment as described above, there is no general vicarious liability in hospitals or similar organisations for independent contractors. Again, a fortiori a private patient may well have selected the consultant to care for him, contracted directly with that consultant for the necessary treatment or surgery, and then contracted separately with the hospital or clinic for nursing and ancillary care. In such a case there can be no vicarious liability for any negligence of his."
"In a private hospital, the consulting physicians and surgeons are generally not employed by the hospital, so it is not liable for their negligence."
"Failed to institute and / or implement a standard operating policy, procedure or guideline to ensure that appropriate cases, as in the Claimant's case, are referred timeously to appropriate teams. In the Claimant's case the appropriate team would have been a surgical team led by a specialist colorectal surgeon."
"Following the Claimant's opening submissions and discussions with the Judge, it was the Second Defendant's understanding that the Claimant agreed that the Second Defendant was not vicariously liable for Mr Behar after the Claimant became his private patient."
"37 Further or alternatively, the Second Defendant, its servants or agents, was negligent.
PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT
(i) The Second Defendant is vicariously liable for the negligent acts and omissions of
the First Defendant and the allegations against the First Defendant pleaded at paragraph 34 (i) to (viii) above are each repeated against the Second Defendant."
"At around 18.00 hours on 4 November 2016 the Claimant was reviewed by the First Defendant in the presence of her sister and her sister's son, The Claimant (now a private patient) and her sister again asked for a second opinion and referral to a specialist colorectal surgeon, which the First Defendant declined."
(emphasis provided)
"3 It is admitted and/or averred that:
(a) Between her admission to the Hospital on 2 November 2016 and about 1600-1630 on 4 November the Claimant was an NHS patient.
(b) Between about 1600-1630 on 4 November 2016 and her admission to the Intensive Care Unit at the Hospital on 9 November 2016 the Claimant was a private patient."
(emphasis provided)
"Later I was moved into the Chelsea Wing, after my sister activated my BUPA insurance policy and all treatment thereafter was covered by BUPA, so is my understanding."
"was a patient under the care of Mr Nebil Behar at the Chelsea and Westminster Hospital in November 2016, initially as an NHS patient and subsequently as a private patient."
Conclusion: Trust Issue 1
§XVIII. TRUST ISSUE 2
(Policy)
- Did the second defendant fail to possess or operate a policy to ensure that medical cases are referred to the appropriate specialist teams in good time?
"failed to institute and/or implement a standard operating policy, procedure or guidelines to ensure that appropriate cases, as in the Claimant's case, are referred timeously to appropriate teams. In the Claimant's case the appropriate team would have been a surgical team led by a specialist colorectal surgeon."
Conclusion: Trust Issue 2
§XIX. DISPOSAL
"Nowhere in the literature does it say that the deterioration is acommon
or even a rare outcome, nowhere does it refer to the events that Ms Deakin-Stephenson suffered. No one could have warned her that this would have happened or could have included it in the counselling (discussion) or included it in the consent form."
"Please note, I am unbelievably and very sincerely grateful to Mr Behar as well as the entire medical team at Chelsea and Westminster for saving my life …"
The first defendant
Breach of duty
(1) Did the claimant and/or members of her family ask Mr Behar for a referral to a colorectal surgeon or a second opinion? NO.
(2) Did Mr Behar instigate and induce the claimant's transfer to private care? NO.
(3) Did Mr Behar inform the claimant on 6 November 2016 that a Hartmann's procedure was a surgical option? YES.
(4) Did Mr Behar warn the claimant of the risks and benefits of a laparoscopic lavage and a Hartmann's procedure? YES.
(5) Did Mr Behar negligently delay surgery from the evening of Sunday 6 November to the morning of Monday 7 November 2016? NO.
Causation
(6) Did any breach of duty by Mr Behar cause injury to the claimant? NO.
The second defendant
(1) Is the second defendant vicariously liable for any negligent acts and omissions of Mr Behar after the claimant was transferred to the private wing of the Hospital? NO.
(2) Did the second defendant fail to possess or operate a policy to ensure that medical cases are referred to the appropriate specialist teams in good time? NO.
Note 1 Ocean Frost was a fraud case, but Mostyn J is surely correct that the principle of external verification must be “of general application” (Lachaux v Lachaux [2017] Note 2 The Gestmin principles approved variously (but see next footnote), including R (Bancoult No.3) v Secretary of State for Foreign and Note 3 It must be remembered thatOnassis, likeGestmin, was a dispute about recollection of business conversations, where typically there will Note 4 At para 120, per Males LJ, “once other findings of dishonesty have been made against a party, or he is shown to have given dishonest evidence, the inherent improbability of his having acted dishonestly in the particular respect alleged may be much diminished and will need to be reassessed.” A dishonesty case, but I discern no valid reason a different kind of impairment to credibility, such as unreliability or inaccuracy, is not capable of the same approach. It is an application of the principle of judging evidence in the context of all other evidence. [Back]EWHC
385 (Fam) at para 37).
[Back]
Commonwealth
Affairs [2018] UKSC 3 – see Lord Kerr at para 103, where they were said to have “much to
commend
them”; however, the Court of Appeal subsequently stated that Gestmin is “not to be taken as laying down any general principle for the assessment of evidence … [instead] It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory” (Kogan v Martin [2019] EWCA Civ 1645 at paras 88-89, per Floyd LJ). [Back]
commercial documentation. Ryder LJ sounds a necessary warning note about “simply harvesting obiter dicta expressed in one context and seeking to transplant them into another” (Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 at para 23). [Back]