[2025] EWHC 2025 (KB)

I find that the claimant has not proved on the balance of probabilities that the defendant incorrectly graded the claimant’s haemorrhoids as grade 2 / 3 when in fact they should have been graded as grade 1 / 2. Specifically, I find that the defendant on the balance of probabilities did correctly grade the claimant’s haemorrhoids as Grade 2 / 3 prior to surgery, and that he did so on the basis of a practice of taking a history and examination which is accepted as proper by a responsible body of Consultant Colorectal Surgeons applying a logical basis (see Bolam and Bolitho).

I take into account the claimant’s submission that the defendant for the most part, has relied on his standard practice rather than any particular recollection of the claimant and that his clinic letters do not contain full details or descriptions of the steps that he said he undertook. To that extent, his evidence is not as strong as it does not contain his particular recollections of precisely what he discussed with the claimant, nor the detail of what he found on examination.

However, against this I also take into account that the defendant is an extremely experienced Consultant Colorectal Surgeon who has significant experience over many years of dealing with patients with haemorrhoids including diagnosing, grading and advising on management including surgery. Grading of haemorrhoids is standard practice and well known and understood by all responsible Consultant Colorectal Surgeons.

Although the defendant frankly said that he had little recollection of the claimant herself, he was able to speak of his usual practice in respect of all these matters and with reference to his contemporaneous letters and documents. These were written well before there was any dispute between the parties and as medical records – are inherently more likely to be reliable (Synclair). It is relevant also that it is not suggested by the claimant that the defendant is lying and nor is it suggested that the defendant’s usual practice has changed. If it is suggested that the defendant is mistaken then as Mr Barnes submits, it is difficult to understand why his approach would be different with this claimant as opposed to all his other similar patients over many years.

In my view, the contemporaneous documentation when viewed in its entirety supports the defendant’s case as does the history. The starting point is the GP’s letter, the contents of which are relevant for the following reasons:

The claimant said in evidence that in the first consultation with the defendant on 15 March 2019, he asked her about her history including her symptoms. This demonstrates that it was part of the defendant’s normal practice to take a history from the patient and that he did so at this consultation. The clinic letter also records a history taken by the defendant. This undermines the suggestion that he would not have done so at the second consultation.

In evidence at trial, the claimant said (for the first time) that she told the defendant in the first consultation, that her bleeding had become particularly problematic when running. Both experts and the defendant agree that the cause of her bleeding was haemorrhoids, and all agree that bleeding whilst running would not be caused by internal haemorrhoids – the bleeding source had to be external, meaning the haemorrhoids must have been grade 3 or 4. This is also consistent with what the GP has recorded as “external haemorrhoids + potential bleeding point seen”.

It is also notable that the claimant recalls telling the defendant about bleeding while running in the first consultation, but this is not specifically referred to in his consultation letter, which supports the defendant’s evidence that he kept his clinic letters brief and did not record every detail of what was discussed.

Regarding the fact that the defendant’s record of “bulky haemorrhoidal tissue” in the first clinic letter does not provide a grade. I accept the evidence of Professor Phillips and the defendant that at this time the defendant would have been in “diagnostic mode” with the priority being to rule out cancer or another more serious cause of the bleeding. This is consistent with the letter’s comment that “rigid sigmoidoscopy was normal” and the fact that he decided to carry out a flexible sigmoidoscopy. The use of the term “bulky” is consistent with the defendant’s description of the haemorrhoids prolapsing out when the proctoscope was withdrawn and it is notable that even the claimant’s expert agrees that this could mean that the haemorrhoids were grade 2 or 3.

I take a similar view in relation to the flexible sigmoidoscopy report not recording the grade of haemorrhoids seen. The purpose of this was to rule out cancer, therefore haemorrhoids were an incidental finding. The letter following the second consultation on 20 April 2019 is consistent with this in that it records that the flexible sigmoidoscopy was “normal to the splenic flexure” – meaning that there was no sign of cancer.

It is correct that this second clinic letter does not refer to the specifics of the history taken from the claimant which led to the diagnosis of 2^nd and 3^rd degree haemorrhoids but equally this letter does indicate that there was a discussion with the claimant about her history – because the letter records that “she takes Movicol which does improve her bleeding symptoms” which is information that does not appear in the GP letter nor in the defendant’s first consultation letter.

In terms of what the claimant recalls, there are several inconsistencies in her account. Firstly, her evidence was that the defendant told her that “the biopsy had confirmed haemorrhoids” – this must be factually wrong as a biopsy would not have confirmed haemorrhoids – instead the purpose of a biopsy is to check for signs of cancer. Secondly, she said that the defendant did not ask her about whether she could feel lumps outside her bottom when emptying her bowels – however when she saw Mr Thompson on 29 December 2021, she told him that she “was not aware of any prolapse but was aware of something around her anus every 2 weeks when she had to strain to empty her bowels”. Mr Thompson said that a responsible body of Consultant Colorectal Surgeons would find this to be consistent with grade 2 – 3 haemorrhoids. Given that the claimant volunteered this information to Mr Thompson, I do not see why she would not have volunteered similar information to the defendant given that at this consultation he was focussed on the issue of her haemorrhoids and the appropriate treatment for them. Furthermore, once the claimant received the clinic letter, she would have seen his grading of her haemorrhoids. She did not query this grading, even though she said she didn’t know what it meant. This is surprising, given that on her evidence she trusted the defendant, and therefore had no reason not to raise anything with him that she did not understand.

I accept the evidence of Professor Phillips that by the time of this appointment, a more sinister cause of the claimant’s bleeding had been ruled out and therefore the defendant would be in “decision making mode” in terms of how to deal with her haemorrhoids. This explains why his clinic letter now gives a grading. Given that the grading system is used and understood by all responsible clinicians, I accept Professor Phillips’ evidence that the grades are “defining words” which carry a specific meaning in themselves. It follows therefore that to arrive at a grade, the defendant must have taken a history and as well as carrying out examinations because a grading could not be arrived at without asking the claimant questions about prolapse and finding prolapse on examination. The fact that only the grading has been written is consistent with the short form, summary style of the defendant’s letters and does not mean that the questions have not been asked which enable such a diagnosis to be made. As Professor Phillips said, the grading given defines the haemorrhoids and the prolapse and the evidence of prolapse is therefore defined by the grade used. I find therefore that a body of responsible body of Consultant Colorectal Surgeons would consider that the grading has a highly specific meaning and (as Professor Phillips says) “says everything you need to know”. This combined with the other corroborating evidence means that I am satisfied that a history of prolapsing must have been obtained together with examination findings and that this is what led to the 2^nd and 3^rd degree grading.

I do not find that the operation note which records the grading as 3 / 4 undermines this conclusion. I accept that there is a difference in the quality of an examination conducted whilst the patient is anaesthetised and therefore fully relaxed and in the lithotomy position, thereby creating a much higher inter abdominal pressure on the bottom. I accept Professor Phillips’ evidence that this makes grading of haemorrhoids easier and that a grade 3 haemorrhoid can then become a grade 4 because the higher expulsive pressure pushes the haemorrhoid out again when it is returned.

It is also relevant that some of the haemorrhoids found during the operation were grade 3, which is consistent with the grading found previously. I accept the defendant’s evidence that the purpose of the examination under anaesthetic is to confirm the grading and that if the grading at this point had been 1 / 2 then he would not have proceeded with the haemorrhoidectomy. Were this not the case, there would be little purpose in this additional examination.