QB-2022-002633 - [2025] EWHC 2576 (KB)

The working model of D’s MDT is that the bariatric nurse is the primary point of contact. This was based on practical and patient-focussed considerations, because SR was the only member of the team permanently based at the hospital. There was, in my judgment, a perfectly proper system for sharing knowledge and expertise and the ‘up-skilling’ particularly of the specialist dietitian and specialist nurse in relation to each other’s work. In any event, patients could, and did, contact D directly through FBM. Any guidance document prepared for the NHS remains both guidance – not a statement of required practice – and of less direct applicability in the private sector as long as there is a reasonable equivalent. I have not been persuaded that what was on offer from the MDT in terms of patient support at the hospital was anything other than a reasonable equivalent.

Mr Rao set much store by the observation in SW’s pre-operative assessment of C that she may need psychological support post-operatively. He relied on this in particular when expressing the opinion that D should have paused after the gastroscopy and engaged dietetic and psychological input and not proceeded to the dilatation, although he was unable to make any suggestion as to what such input might have entailed, because, he explained, it was outside his field of expertise.

I find Mr Rao’s reliance on SW’s observation to be surprising and misplaced. C’s presentation to SW was objectively unremarkable, as SW made clear in her evidence. It would be surprising if a patient seeking out radical bariatric surgery were not to have some degree of psychological history to note. I reject the contention that SW’s observation had any greater significance in C’s circumstances or that it provides support for the case relating to psychological input post-gastroscopy. There was nothing in C’s presentation or from any of the investigations to suggest that the root cause of her difficulties was related to anything susceptible to counselling/psychological resolution. I find that the same applies to dietetic input. C had not progressed as expected (by her and by SR), she had moved back a stage in the reintroduction of textures and restarted her progression. There is no evidence that C was doing anything other than following the careful guidance as to diet and therefore no evidence that all the presenting information immediately after the gastroscopy indicated difficulties that might be resolved by dietetic input. I accept D’s evidence and that of Mr Rahman (and even Mr Rao’s general view) that the holistic picture was highly suggestive of some form of narrowing in the area of the GOJ.

Mr Rao’s suggestion that C’s difficulties might be explained by dysmotility, which seemed superficially attractive when he explained the mechanics, was roundly undermined by Mr Rahman’s evidence explaining the findings of the Sioka paper, which addressed this point.

The inability of an expert witness to recite the Bolam test by heart is in no way determinative of the quality of their opinion. However, in this case it was simply not clear to me that Mr Rao had at least the basic understanding of the legal parameters within which he was being asked to express his opinion.

As characterised above in paragraph 47, Mr Rao’s evidence was both difficult to understand, due to his inconsistent use of terminology, and was lacking a coherent basis for the position he adopted. This position was that balloon dilatation should only be performed in the presence of what he called ‘confirmed stricture’. However, he might have been more able to consider objectively and respond to points put in cross-examination if he had adopted a consistent rather than fluctuating approach to the central terminology engaged in the expert reports and the medical literature. I was simply left with the impression from Mr Rao that (a) confirmed stricture (whatever this strictly meant in his lexicon) was required before considering balloon dilatation; (b) confirmed stricture is not to be found at the GOJ; ergo, (c) balloon dilatation as performed by D should not have been done and could not be justified. I would interpret this as the basis on which Mr Rao asserted that D’s actions failed the Bolam test.

Mr Rao was not able to respond adequately to points put forward in cross-examination from Mr Rahman’s evidence that supported a different opinion. This was to be contrasted with the evidence of Mr Rahman who explained his opinion in a coherent and comprehensible manner, backing up his opinion by reference to the medical literature – both in support of his evidence and explaining why the literature relied on by Mr Rao did not have the import or force ascribed to it by Mr Rao.

In all material respects, and applying the principles in C v North Cumbria, I have no hesitation in preferring the evidence of Mr Rahman to that of Mr Rao.

Of course, Mr Rahman’s opinion is only as good, so to speak, as the factual basis upon which it is based. I acknowledge that some details of D’s oral evidence were not contained in his written evidence. However, I have reminded myself of the context within which the written statements were prepared. At the stage that they were served, the claim was very much wider, encompassing a much more extensive set of alleged negligent acts, almost from the inception of the patient-doctor relationship. The claim was significantly truncated and reduced to a much more limited focus only the week before trial. In those circumstances, and from my general assessment of D’s evidence, I am not persuaded that there is any potential unreliability to attach to his evidence as given at trial.

Addressing the revised issues in paragraph 40 above, I have concluded that there was no breach of duty as set out in (i), the pleaded failure to provide reasonable post-operative support by not involving other MDT members post-gastroscopy and pre-balloon dilatation. Even if that had been established as a breach, I would not have been persuaded that, on the balance of probabilities, such a failure caused injury or damage to C. Equally, I have concluded that C has not proved that on the balance of probabilities there was a breach of duty by D’s performing the balloon dilatation in the particular circumstances of this case.