The Dekagram: 25th March 2024

Articles, News

25/03/2024

Chilton v Payne [2024] EWHC 451 (Admin)

 In a case which will be of interest to all practitioners undertaking claims arising out of cosmetic surgery, Henshaw J recently dismissed an appeal in a claim founded on allegedly poorly provided aftercare following abdominoplasty.

The Facts

The Claimant Ms Chilton had entered into a contract with the hospital for the provision of revision abdominoplasty in June 2014, and aftercare. The Defendant Mr Payne was the surgeon contracted by the hospital to perform the surgery (he had previously performed an abdominoplasty on Ms Chilton in May 2013). Th surgery duly took place on 1th June, and 28th June and 10th July Ms Chilton received follow up from nurses at the hospital.

In a development familiar to practitioners Ms Chilton’s wound became infected, and on 18th July she attended a walk-in clinic, where infection was noted and she was prescribed antibiotics. Unfortunately her condition deteriorated and she was admitted to hospital on 6th August. She subsequently underwent debridement, where two litres of seroma were drained.

The parties’ plastic surgeon experts agreed that had Ms Chilton been reviewed by Mr Payne on or around 17th July 2014, i.e. about one month or 30 days post-operatively, he would have identified the seroma and treated it conservatively; and they agreed that in this event Ms Chilton would have avoided the debridement and the worse cosmetic result.

The only question, therefore, was whether he ought to have provided this follow up service.

The hospital responsible, The Hospital Group, has since gone into administration, and therefore Ms Chilton’s representatives were placed in the unenviable position of attempting to blame everything that had gone wrong on the surgeon – they asserted that he ought to have undertaken the follow up, told the hospital nurses to inform him that he ought to examine Ms Chilton, and should have reacted more pro-actively to a telephone call from Ms Chilton’s mother, who had tried to alert him to her daughter’s condition.

The contract between Ms Chilton and the hospital contained the following clause:

“Aftercare: the initial aftercare period will include standard post-surgical review appointments within the term specified on your personal quotation. Please see our website for full details of your aftercare policy. You may wish to download this information for your records. We do reserve the right to change our aftercare policy …” et cetera “…and your aftercare policy starts on the date of your procedure. Outside aftercare packages and appointments in any subsequent investigations and/or treatment will be quoted and charged separately.”

The patient information booklet stated:

“Post-operative follow-up is of paramount importance. Each patient undergoing abdominoplasty surgery will be given post-operative appointments for wound management and suture removal. Post-operative instructions are vital and we consider it very important that you adhere to them. Failure to follow these guidelines and attending your appointments can adversely affect the outcome of surgery and put your safety at risk. Following the abdominoplasty, the patient is asked to return on specified appointments approximately at seven, 15, 30 and 90 days, or as required. Occasionally it may be necessary to return more regularly than those stated. Transport is not provided by the clinic for post- operative appointments.”

It was clear that the post-operative follow-up was to be provided by The Hospital Group.

In addition:

“If post-operatively you have any concern or doubts or queries about any aspect of your treatment, you should telephone the hospital as follows.” A hospital ward number is given and then a telephone number and, underneath that, an emergency nurse number. Further down it says: “However, if you feel that you are developing a more serious problem, do not hesitate to contact the appropriate emergency authority, e.g. local A & E department or GP.” It gave the claimant the option of dialling an emergency number to get in touch with The Hospital Group if there were any complications or concerns that she had or, alternatively, quite properly, she was reminded that the NHS provides emergency services also.

Mr Payne’s evidence was that the nurses would conduct the first appointment within seven days post-operation, because they can change the dressing and deal with the wound, and that a seven-day appointment is too soon for any significant signs of infection or non-wound healing to appear.He confirmed that he preferred to see the patient one month after surgery because he could still change something. He said: “ I like to see a patient. It is my own preference, but not a rule. “ He said that seroma can appear quickly after surgery or weeks later. Reference was made to another document, a flow diagram or an ‘algorithm’ which stated “ Day 30: Review with surgeon and see photos from nurse “. Mr Payne said “ I agree we should have a follow-up after two weeks, but not necessarily by me. I like to see the patient in 30 days because if there is an infection, we can do something about it. But she can be seen by the nurses or, if necessary, the nurses call me .”

The judge concluded from Mr Payne’s evidence that there was a protocol (or a procedure) in place for the surgeon to see the patient after 30 days after this type of surgery, which was, however, not an absolute rule, and that if there were any clinical concerns, then the nurses would inform him. He was asked about his duty as a surgeon and it was put to him that it was his duty to follow up after a patient had received surgery, to which he said: “ No. There are protocols in place “, being the protocols to which the judge had already referred.

So it was Mr Payne’s evidence, with some support from the documents, that he owed the Claimant no such duty.

He also made the important point that, even if he had seen Ms Chilton when the nurses did, the outcome would have been the same because he would not have done anything different to them: at the first appointment the wound was healing well, on the second occasion some preventative steps were taken (by way of iodine) to prevent any infection. This type of non-healing is not unusual for this type of surgery.

The Law

At paragraphs 44 to 47 Henshaw J reminds us of the basic principles when it comes to clinical negligence; there is also a nod to the Court of Appeal decision in TUI v Griffiths [2021] EWCA Civ 1442 at paragraph 48 (why the decision in the Supreme Court is not referred to is not clear). We then get, at paragraphs 49 to 55, a helpful precis of the rules on the approach to appeals on questions of fact and procedural irregularity.

The Appeal

On the facts, Kenshaw J found that the surgeon did not owe a duty to write into his operation notes a requirement for him to see the patient 30 days after the operation:

Viewing the matter in the round, I consider that the judge was correct, for the reasons he gave, to conclude that Mr Payne owed no such duty. Mr Payne was working as part of a specialist team, including experienced nurses, with whom he worked closely. There were protocols in place for the regular monitoring of the patient by the nursing team, referring back Viewing the matter in the round, I consider that the judge was correct, for the reasons he gave, to conclude that Mr Payne owed no such duty. Mr Payne was working as part of a specialist team, including experienced nurses, with whom he worked closely. There were protocols in place for the regular monitoring of the patient by the nursing team, referring back.

As to whether Mr Payne owed a duty to see his patient some four weeks after the surgery:

The judge did not conclude that the duties owed to Ms Chilton by the hospital removed Mr Payne’s duties. Rather, he found that the manner in which Mr Payne could discharge his duties had to be assessed in the context of the systems that were, as a matter of fact, in place at the hospital. In the context of a specialised private clinic, with the protocols in place which the judge had described, Mr Payne was entitled to fulfil his duties (including leadership duties) by instructing and monitoring the nurses in the way the judge found he did, and by ensuring he was satisfied that the system was working and could be expected to result in the patient being referred to him whenever appropriate.

Procedural Irregularity

Unusually, having given evidence the Defendant’s medicolegal expert had produced a further witness statement clarifying what he had said in cross- and re-examination, and this statement had been admitted into evidence as confirming his evidence. The Claimant appealed this decision on the part of the trial judge, asserting that it was a procedural irregularity in that her counsel had not been able to cross-examine on the statement. In doing so she relied on the Supreme Court decision in Griffiths. Kenshaw J rejected this ground of appeal:

In principle I see no difficulty with a judge allowing a witness who has given evidence to correct or clarify something he/she has said, if on private reflection the witness feels correction/clarification that to be necessary in order to avoid the judge being left with an incorrect account of events or (in the case of an expert) of the expert’s opinion. On the other hand, if in substance the witness is being allowed to give additional evidence in chief, then fairness would generally require an opportunity to be given for the opposing party to cross-examine.

In the present case, however, I do not consider any material irregularity to have occurred, nor one which have undermined the judge’s findings on the issues; nor (in any event) a serious or grave irregularity amounting to a denial of justice. As the judge said in Judgment § 129, after outlining the gist of the further statement, ”he had also told me that in re-examination” , adding in § 130 that he (the judge) had come to the conclusion that Mr Fitzgerald’s evidence was consistent with ”the process and procedure that was adopted by The Hospital Group as invoked by Mr Payne in any event”…Counsel for Ms Chilton was unable to point to any aspect of the new witness statement that added any of substance to what Mr Fitzgerald had already said in his report or in his oral evidence…The fact that the statement appears to have been written up by the legal team is not a reason for doubting that it reflected Mr Fitzgerald’s views, particularly in circumstances where it did no more than to repeat what he himself had said in re- examination.

There was therefore no procedural irregularity.

Comment

It is clear that judges in all areas of law are well aware of the decision in Griffiths and of its far-reaching implications – but that does not appear to mean that in all cases appeals such as this on grounds of procedural irregularity will succeed. For what it is worth, the author is aware of many judges who would have considered the admission of a statement such as that of Mr Fitzgerald an irregularity – but whether, given the totality of the evidence, the appeal would have been allowed on this ground is perhaps debatable.

It is also interesting to note the division of responsibility for the provision of aftercare; a surgeon might owe a duty to see a patient personally for follow-up, but only in some particular circumstances, and in every case it will be important to examine what was promised in the pre-contractual literature and in the contract itself. A reminder perhaps that in cases of this nature it is always worth considering whether the hospital or clinic should be sued as well as the surgeon (although in this case The Hospital Group was in administration, and the author has some experience of just how unhelpful its administrators can be in dealing with patients’ claims, so has some sympathy for the Claimant’s solicitors in this respect).

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

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Sarah Prager KC

Call 1997 | Silk 2023

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