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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Laughton v Shalaby  EWCA Civ 1450 (12 November 2014)
Cite as:  EWCA Civ 1450
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ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE McCOMBE
THE RIGHT HONOURABLE LORD JUSTICE VOS
|- and -|
|SALAH ELDIN AHMED EL SAYED SHALABY|
(Transcript of the Handed Down Judgment of
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Mr Dominic Nolan QC & Mr Toby Stewart (instructed by DAC Beachcroft LLP) for the Respondent
Hearing dates: 29th October 2014
Crown Copyright ©
Lord Justice Longmore:
"34. Every surgical approach to the hip has a list of complications. A lateral approach to the hip does risk abductor avulsion because of course the abductors are reflected and elevated in order to dislocate the hip and are then reattached. No surgeon would leave the abductors unattached and the fact that they were found to be separated at the time of the secondary procedure indicates that they had avulsed, or separated from the reattachment rather than had not been reattached.
35. Unfortunately this is a well known complication of this approach to the hip. It does not in any way imply a breach of duty by the initial surgeon unless he intentionally did not attach the glutei which would be most unlikely.
37. In summary I find no evidence of any breach of duty in the performance of the hip arthroplasty. Unfortunately abductor separation is a well known and recognised complication."
Submissions of the appellant
1) lies told by Mr Shalaby to Dr Burnett in November 2009 in relation to the state of his marriage; Dr Burnett had been instructed by the General Medical Council ("GMC") as a consultant psychiatrist to assess Mr Shalaby's fitness to practice;
2) lies told to Dr Wilkins another consultant psychiatrist in June 2008;
3) allegations made about the Horder Centre by Mr Shalaby which Mr Yell characterised as "bizarre";
4) failure by Mr Shalaby to disclose in his witness statement of 19th August 2011 (which said merely "I am not currently in practice") and, later, in his oral evidence at trial that conditions had been imposed on his registration to practice, and that he had been subsequently suspended;
5) the fact that, in December 2006 and during the period "late 2007" (according to Dr Burnett) to July 2008, Mr Shalaby suffered from stress and had been consulting his general practitioner for stress related problems at work; these problems were said to give rise to sub-standard care to various patients between 2006 and 2008;
6) the fact that in all 26 separate complaints had been made by patients about Mr Shalaby;
7) criticisms made by Mr David Miller the consultant orthopaedic surgeon instructed by the GMC, to investigate treatment afforded by Mr Shalaby to 7 patients; and
8) criticisms made by the Health Care Commission.
1) the judge failed to quantify the recognised risk of avulsion occurring without negligence after a hip operation;
2) the judge failed to consider and assess the criticisms of Mr Shalaby enumerated at paragraph 9 above;
3) the judge failed then to balance those criticisms against the rarity of an avulsion occurring without negligence; and
4) if the judge had done that balancing exercise, he would had to have held that Mr Shalaby had been negligent.
He submitted that this court should therefore reverse the judge and hold that Mr Shalaby had been negligent.
Rarity of risk of avulsion
Extraneous factors – relevance?
(A) Lack of Probity?
(C) Incompetence in other cases?
"matter in issue between the defendant and the prosecution."
S. 103(1)(a) then provides that such matters include
"the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of an offence."
"The evidence of complaints is not probative. It is merely evidence of complaints."
"I would sum up Mr Shalaby's care as being below the standard and on occasion falling seriously below the standard expected of a reasonably competent orthopaedic surgeon."
This is, of course, a damning general comment but, of itself, cannot prove that Mr Shalaby was negligent in Mrs Laughton's operation. This is all the more so since Dr Miller's comment on Mrs Laughton's surgery was:-
"From the information before me, this patient was unlucky to suffer a detachment of the anterior gluteal flap, but, if this represents an isolated instance, this does not constitute negligence or necessarily poor performance by the surgeon involved.
I believe this to be a complication suffered by most if not all hip surgeons and I do not believe it causes the surgeon to fall below the standard of a reasonably skilful surgeon. If however it was found that a high percentage of his hip replacements suffered this complication, my conclusion would be different."
Lord Justice McCombe:
Lord Justice Vos: