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

Following the amendment by consent of the claim, deleting the elements relating to consent and to performance of the gastrectomy procedure, the issues at the liability trial were:

It was clear that the issue of causation remained live in respect of the alleged breach of duty relating to post-operative care (paragraph 15(i) above), but it was sensibly conceded by D that, if the Court found a breach of duty in respect of the balloon dilatation (paragraph 15(ii) above), then causation would obviously be established.

C’s case in brief on the balloon dilatation was that there was no good evidence of stricture and conservative treatment measures should have been attempted and exhausted before embarking on the dilatation procedure.

D’s case in brief was that C’s presenting symptoms post-operatively were suggestive of some restriction at the GOJ, rather than an issue that might be susceptible to external (dietary and/or psychological) input. This was supported by the barium swallow and then by the gastroscopy, justifying the balloon dilatation procedure. Despite cautions applied, C developed a sleeve leak, but neither the dilatation procedure, as a response, nor its performance were negligent.

The evidence at trial of Mr Rao, C’s expert witness, was that he had considered the written and oral evidence of C, D and D’s witnesses and had formed the view that, if the Court were to accept the defence evidence about the accuracy of the medical notes post-operatively, then the care provided up to the point of the gastroscopy would be considered reasonable. Alternatively, if the Court accepted C’s evidence about additional contact and/or further information of concern passed on by C then the failure to escalate the response from the bariatric nurse to the specialist dietitian and the psychotherapist would amount to a culpable failure and a breach of duty.

In the circumstances, the first consideration is resolution of the factual issues around the post-operative care and communication between C and D and his team.