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

Having reached the factual findings about the lay evidence in this case, which incorporated the central submissions of both counsel on that evidence, I summarise here only the submissions made in respect of the expert evidence.

Ms Hughes’ primary point was that Mr Rao’s evidence simply did not support a conclusion that there was no body of reasonable and responsible bariatric surgeons who would have performed a balloon dilatation in the circumstances presenting to D at the point of the gastroscopy. D considered C’s symptoms to be ‘textbook’ indications of narrowing and Mr Rao agreed narrowing would be top of the list of potential causes. The gastroscopy findings of possible tightness or inflammation were consistent with all other information available to D. Mr Rahman had been consistent in his written and oral evidence and remained of the view that the balloon dilatation was reasonable, despite fair but robust cross-examination. There was an improvement post-procedure which also suggested that it was reasonable to treat the narrowing that was suspected and then demonstrated on the gastroscopy. The small size of balloon compared to the sleeve size, together with the site of its use and the limited duration and strength of its use all combined to make the balloon dilatation not only reasonable, but the correct treatment. Ms Hughes noted that there was no evidential basis for the assertion that it would have made a difference to refer to the dietitian and psychologist immediately post-gastroscopy.

Ms Tibbitts acknowledged the significant criticism made of Mr Rao’s evidence, but she emphasised that he had been doing his best to assist the court, had made fair concessions, gave evidence in a measured way and was very clear about the definitions he was using in relation to narrowing or stricture. She criticised Mr Rahman’s evidence for failing to take into account C’s evidence regarding post-operative follow-up. She accepted the limitations to the evidence about what might have come out of a reference back to members of the MDT but submitted that Mr Rao had been very clear and consistent that there was no role for balloon dilatation in the absence of confirmed stricture or stenosis. She repeated Mr Rao’s evidence about how an experienced dietitian can be more thorough than a surgeon and engaging the MDT might have yielded a different approach. There was, she contended, a gap in the evidence, she said, as to whether functional stenosis can occur at the GOJ; only Mr Rahman says it can. Ms Tibbitts also highlighted aspects of D’s evidence which she contended were unsatisfactory, such as omitting details about reviewing the radiological findings of the barium swallow or describing the narrowing that he relied on as his key finding.