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

From the Medical Literature Bundle, the following papers featured most prominently in the oral evidence of the experts:

Mr Rao was called as the expert witness for C.

He is a Consultant Upper Gastrointestinal, Laparoscopic and Bariatric Surgeon and he provided two reports as well as contributing to the joint expert statement. During the course of cross-examination, he accepted various propositions put to him on behalf of D that provided a somewhat clearer context for his opinions than may have been obvious from his reports. For example, he had referred in his main report to the difficulties experienced by C in week three post-operatively. Although his report said he had drawn the information from the medical records, he accepted that this was not correct, there being no recorded contact between C and any of the MDT between 3 and 29 October. He could not pinpoint the source of the information but accepted that it may have come from C’s written evidence. By reference to O’Kane paper, Mr Rao advanced the view that the private sector ought to mirror the NHS in terms of best practice. He agreed that SR was the most readily accessible member of the MDT and that she was giving advice in line with what might be expected of a dietitian up to 3 October, but when things seemed to be going wrong thereafter, he stated that a full reassessment by a dietitian was required.

Mr Rao agreed with Ms Hughes that, if the Court were to accept the evidence in the contemporaneous medical records as a complete record of interactions, then the post-operative care of C was reasonable up to and including the performance of the gastroscopy on 27 November 19. It was from that point in the chronology, he opined, that there should have been a MDT review to consider what, if any, action should be taken and by whom. He took the view that dietetic and psychological input was required, given C’s presentation of difficulties and given the pre-operative psychotherapeutic assessment.

Mr Rao did not accept that performing a balloon dilatation or do nothing (in the context of D’s finding of a possible narrowing, coupled with the barium swallow result) were the only options because of his view about the need for a MDT review. Nevertheless, he was candid that he could not say what dietetic or psychological interventions might be suggested as these were outside his field of qualifications. He also accepted that the barium swallow was a reasonable investigation because usually in clinical practice one would investigate the physical before the psychological. As to whether a barium swallow could miss a functional stenosis, Mr Rao said it could not but relented when taken to the Rebibo paper.

Mr Rao was strongly of the view that a balloon dilatation was only to be conducted in the presence of confirmed stricture and equally strongly of the view, it seemed, that such stricture would only be expected at the distal end of the sleeve (the incisura angularis) usually as a result of twisting. He would not countenance stricture at the proximal end, at the GOJ. However, Mr Rao’s use of the term’s ‘stricture’, ‘stenosis’ and ‘narrowing’ was to say the least difficult to follow and, from a careful review of his evidence, seemed to shift depending on the context in which he wished to use it, particularly regarding the term ‘stenosis’. At times, Mr Rao appeared to be using it as a synonym for narrowing, but at other times he sought to distinguish the two. He referred to D’s opinion of there being narrowing at the GOJ as “his subjective interpretation”. In Mr Rao’s view there had to be “definite evidence of organic or functional stricture” before considering balloon dilatation.

Mr Rao’s general opinion was that one would expect the bariatric dietitian to be the point of contact post-operatively and he referred to guidance issued for the NHS. He did accept that the established MDT in this case worked closely together and there appeared to be good practice in the way in which it operated.

As part of his evidence, Mr Rao also accepted that C’s symptoms were indicative of narrowing but added dysmotility as an alternative explanation. Despite this, he acknowledged that it was reasonable to view narrowing as top of the list of possibilities. However, he expressed the opinion that once the barium swallow and gastroscopy had ruled out mechanical stricture there was “nothing to treat” and a practitioner would then look at other problems that C might have. He added that he would have engaged the dietitian and psychotherapist/counsellor alongside the investigative measures but conceded that it was reasonable to address possible physical causes first and input from the other members of the MDT subsequently. He referred back a number of times to SW’s assessment of C as potentially needing post-operative support, even when it was put to him that there was no evidence that C was in fact having difficulties coming to terms with the changes to diet and lifestyle.

Mr Rao provided an anatomical description of why he suggested dysmotility was another possible explanation and which should have been considered immediately following the gastroscopy, taking a “step back” as he described it.

Mr Rao was asked by Ms Hughes to explain his understanding of the Bolam test, which he had mentioned by name in his report. The answer he gave did not disclose an accurate understanding and/or an ability to explain the test applicable in cases of alleged clinical negligence.

Mr Rahman was called as the expert witness for D.

He is a Consultant General Surgeon with a special interest in Pancreaticobiliary, Upper Gastrointestinal and Bariatric Surgery. Although his academic interest is in matters related to the pancreas, his clinical practice, both NHS and private, is 50% bariatric-related. He had relied on the contemporaneous medical notes for his assessment of the case, because factual disputes between the parties’ witnesses were for the Court to resolve.

He accepted that there was a risk of perforation from balloon dilatation (noting that such risk existed just from the gastroscopy) but pointed out that in the paper by Chang the risk was assessed as 2/432. The risk was also related to the size and type of balloon used. Mr Rahman noted that none of the papers actually dealt with use of a small balloon, as was used by D. He said, in his opinion, the risk was tiny and probably well below 1/500 or 1/600. The presentation of C’s symptoms, where food was getting stuck, together with the findings of the oral contrast swallow, suggested an abnormality. It was then reasonable to perform a gastroscopy followed by a dilatation if narrowing was found – and such a finding would correlate with the radiological findings and the history given by C.

Mr Rahman agreed that there were multiple potential causes for the symptoms described by C, but he rejected Mr Rao’s suggestion that the intermittent holdup of contrast in the barium swallow was consistent with dysmotility. He referred to the Sioka paper which looked specifically at changes in pressure, comparing results before and after sleeve gastrectomy operations. Although Mr Rao was correct about the reduction in length of lower oesophageal sphincter, pressure readings were in fact lower post-operatively in such cases and not higher as Mr Rao described.

In response to the various papers relied on by Mr Rao, Mr Rahman disagreed with the suggestion that they clearly supported dilatation only with a confirmed stricture or stenosis. He first provided a careful and intelligible explanation of what was encompassed medically and physically by each of the three terms in contention: stricture, stenosis and narrowing. He then provided commentary on the various papers to explain why they were not as supportive of Mr Rao’s position as might appear superficially. This included, for example, why distal gastric stenosis would often be the result of twisting, whereas this would not be the case at the proximal end, the GOJ, as in C’s case. It was therefore understandable that papers defining stenosis as twisting would not include stenosis at the proximal end. He opined that functional stenosis at the proximal end is harder to detect and is more likely to be the result of inflammation or distortion at the top of the gastric sleeve. He did not disagree that functional stenosis at the GOJ was less likely than at the incisura angularis, but many of the papers had either not looked for such cases or such cases were under-reported. Many of the papers also involved a relatively small number of cases and this had an impact on their wider applicability.

Whether functional or mechanical stenosis, Mr Rahman was clear that in his opinion it was reasonable for D to perform the dilatation. This was especially so bearing in mind the size of the balloon and the limited duration of its use. The fact that a perforation occurred from the use of the small-sized balloon, was itself strong support for the presence of stenosis or narrowing. Mr Rahman also explained that D’s query as to tightness on the gastroscopy, contained in the surgical note, was when D was using a 9mm scope. It would have been even more obvious if a regular 9.6mm scope had been used. Taking the preoperative findings and the post-operative outcomes as a whole led him to conclude that the balloon dilatation was “absolutely reasonable”.