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

What follows is not intended to be an exhaustive and complete resume of the written and oral evidence of C, D and D’s witnesses. In reaching my conclusions I have taken account of all the relevant evidence on the issues that require determination. Some evidence is referred to because it assists in the assessment of reliability.

C said that she recalled discussing types of food, textures and expected progression post-surgery with one or other of the MDT, although she could not recall if all of this was necessarily discussed before surgery. She agreed that LJ advised her about having a relatively high protein diet but did not recall the ‘bariatric plate’ including fruits/vegetables and carbohydrates. The importance of chewing well and not eating and drinking at the same time was made clear. C agreed that LJ had told her to be in touch with any problems with food post-surgery but denied there had been any reference to the potential for pain or vomiting or that this should not be tolerated and should be reported straightaway. She said if that information had been given to her, she would have been concerned about having surgery. C maintained her position that there had been more contact with the bariatric nurse than contained within the medical notes and that there were additional FBM communications between herself and D not contained in the pages of messages disclosed on both sides. As to the latter, she had disclosed into the proceedings all the messages that she could access.

Mr Rao placed some considerable reliance on one observation from the pre-operative assessment by SW of C, to the effect that C was “not unsuitable for surgery but will likely need support”. In her oral evidence, SW accepted that C had described experiencing depression and loss, but that these were not at levels greater than those seen in others in similar circumstances. SW rejected the suggestion that C was potentially vulnerable, which was not her presentation. SW could have been contacted directly by C but the indications post-operatively were that C was struggling with adjustment to the surgery, not that she was feeling unwell psychologically. If that had been said, then others in the MDT would have alerted SW.

Asked about SW’s note in respect of post-operative support, D said that the majority of his patients came with childhood trauma or traumatic life events, but there were no red flags that would stop C’s surgery. He saw C in hospital before discharge and he relied on two forms of communication thereafter: through the MDT, though primarily SR because she is the only member of the MDT permanently at the hospital and therefore available; and FBM which had become a medium for communication with patients and was one that C used. By the third day post-surgery, D had been made aware by SR that C was really struggling. It was most likely dehydration, and a bed was secured for her return for assessment. There was then no contact between 3 October and 29 October 19. Had there been a message from C that she was struggling there would have been advice to go back a stage in the reintroduction of different consistencies of food and then to seek to progress again, but there was no evidence that C contacted him.

By 29 October 19, D was aware of C complaining about food becoming stuck; the information came through SR. C’s difficulties were highly unusual in D’s experience at the six-week post-operative point, particularly because D had used the widest sleeve for the procedure (a 40 Fr bougie). To rule out a mechanical issue required a barium swallow. D did think at first that there may be some narrowing. The description given by C was a fairly ‘textbook’ description of narrowing, with the reports of vomiting being consistent with a mechanical obstruction. A normal barium swallow result would trigger psychological and dietetic support, but if the difficulty were mechanical, such support would not resolve it. D explained that it would be standard practice for him to sit with the radiologist and go through the barium swallow imaging, because the report alone does not provide the full picture. D accepted that this point was not covered in his statement.

D’s sitting with the radiologist would have been done after radiological reporting, with playback of the imaging. He said he did not rely solely on the radiological report, and it was his clinical opinion of the information as a whole that there was a GOJ stenosis. The pooling of liquid for as long as seen in the radio-imaging was abnormal and it cleared through a narrow segment. D concluded that something was preventing C’s oesophagus from opening normally. D denied ignoring evidence that weighed against narrowing, relying again on the visible abnormality in the context of a six-week history of suffering. The next diagnostic stage was gastroscopy with dilatation if appropriate. D had not set out with the intention of performing dilatation, which he would have avoided, if at all possible, but he could not leave a patient who was clearly suffering and struggling without investigating further and acting if necessary. He was clear that C was on the correct nutrition and hydration; no dietetic advice would have made a difference.

As to the dilatation itself, the balloon used by D was very small, a 20 fr size (half the size of the sleeve) and it was applied very gently. D emphasised that it was used to dilate the oesophagus at the GOJ, not the sleeve itself of which the staple line is a margin of a centimetre from the GOJ. The decision to proceed to dilatation followed on from D’s findings during the gastroscopy. The diameter of the GOJ is 13 millimetres and the scope used for the gastroscopy was 9 millimetres. D felt the endoscope was slightly gripped when going through the GOJ. D’s operation note, including a question mark, means that it took a little bit of gentle pushing to get the endoscope through. The inflammation observed matched with the barium swallow findings and C’s reported symptoms. The operation note was written on the day with the letter relating to it completed the same evening – this was not “concocted” as was suggested on C’s behalf. Radiological evidence after the balloon dilatation showed an improvement.

LJ emphasised that, whilst there was a lot of dietetic information for a patient to consider in adjusting to life post-surgery, such information is not communicated during a one-off appointment with the dietitian, but rather it is standard advice given by all in the MDT consistently in the pre-operative stage and through support in the post-operative stage, as well as being provided in writing. In LJ’s experience, the intervention and support of SR is sufficient in most cases, and it is rarely necessary to escalate matters to LJ. However, when required, naturally LJ would be available. LJ’s personal experience of sitting in on SR’s consultations gave her every confidence that she (SR) was giving accurate dietary advice. This was borne out by various references in SR’s notes on which LJ commented, relating in particular to adequate hydration, nutritious fluids and energy levels. From a dietetic perspective, based on the records, SR’s support was appropriate.

SR was taken through the relevant records, in particular the daily contact logs from the immediate post-discharge period. It was put to her that C complained of vomiting at the one-week post-operative stage, but SR said that if this had happened, there would be a note in the records as this would have been a red flag, and this would have been passed on. She could not see a way in which she would not have noted something so significant. SR also said that if there had been a telephone call, as C’s evidence suggested, to say that she was extremely unwell and very weak, SR was sure that she would have acted on this and passed it on to D. It would not be unusual to feel weak ten days after surgery, but if C had communicated being very unwell, then SR would have acted differently. SR had daily contact with D. The quality of her record-keeping was challenged, but SR said she checked her work mobile and there were no messages from C asking for a call back. She considered herself a good practitioner, who does write things down, especially if patients are telling her that they are vomiting, for example. This would have been recorded and reported to D. SR would have been very concerned if she had ignored a report of vomiting; she would not have left that as an outstanding issue and would have acted at the time, not waiting for the next scheduled review. SR’s communicated concerns to D led to the barium swallow procedure, because it sounded like a mechanical issue that needed input from a surgeon.