[2025] EWHC 2025 (KB)

The claimant has clear reasons to specifically recall the relevant events given the significant consequences she suffered because of the surgery.

The claimant’s evidence that she did not have prolapsing haemorrhoids is supported by the absence of any mention of an issue with prolapsing haemorrhoids in the medical records. The fact that her presenting complaint was bleeding and not prolapsing haemorrhoids corroborates this. She submits that the GP has confused her skin tag with haemorrhoids as GPs are wont to do and that it is for the surgeon to carry out his own assessment.

The parties and the experts agree that if the claimant’s haemorrhoids were only grade 1 – 2 then surgery was not indicated and should not have been offered to her. The claimant’s evidence is consistent with a finding of grade 1 – 2 haemorrhoids.

The parties and the experts agree that appropriate grading of a haemorrhoid requires both a history from the patient and examination findings.

The defendant’s evidence for the most part relies on his standard practice rather than any particular recollection of the claimant. His clinic letters do not contain a full and accurate record of all the information that he claims he elicited from the complainant or discussed with her. They do not explain how and why he graded her haemorrhoids as grade 2 / 3 (and grade 3 / 4 at the operation).

If a prolapsing haemorrhoid had been visualised during the first examination by the defendant on removing the proctoscope (ie visualised without obtaining a history of a prolapsing haemorrhoid requiring digital replacement), this would have likely been recorded in the first clinic letter and the Claimant would have been made aware (both of the digital replacement and via the likely conversation that would follow). It would also have featured in the Defendant’s witness statement or, failing that, in his supplementary witness statement. Similarly, the flexible sigmoidoscopy report does not refer to any grading of haemorrhoids.

The process of when and how grading took place is therefore unclear. Nowhere in the documents does the defendant confirm that he visualised prolapsing haemorrhoids or that he obtained a history of prolapsing haemorrhoids that required digital replacement. In addition, the change in grading from grade 2 / 3 to grade 3 / 4 during the operation is unexplained by the defendant in evidence and the explanation provided by Professor Phillips is a theoretical explanation which is not evidence that the defendant himself has given.

Although the claimant accepts that she told the defendant that she had episodes of bleeding whilst running and it is accepted that this bleeding must have come from haemorrhoids and not the chronic, healed fissure, this does not assist with what grade the haemorrhoids were.

When the claimant received the letter dated 23 April 2019 that graded her haemorrhoids as grade 2 / 3, she would not have flagged this up or queried it because she would not have known what this grading meant. She is not a medical professional.

As regards the advice and options given to the claimant, the parties and the experts agree that if the claimant’s haemorrhoids were grade 3 or above then surgery was indicated. However, the experts agree that the claimant should still have been advised about conservative, non-surgical alternative treatment options.

Ms Pooley submits that the defendant’s letter of 23 April 2019 following the second consultation positively presents surgery as the only option and makes no reference to discussion of alternative conservative, non-surgical treatment options. She submits that the defendant only refers to having given advice about alternatives in his response to the claimant’s letter of complaint much later. The claimant’s evidence was that the only verbal advice she received from the defendant was that surgery was her only real option and conservative alternatives were not discussed with her. The only information she got about alternative options came from the EIDO leaflet, but it is understandable that she would not have queried these with the defendant subsequently because the advice she had got from him was that surgery was her only option.

The court should not put much weight on the fact that the claimant’s complaint letter did not raise issues about the grading of her haemorrhoids or advice about the risks of surgery or alternative treatments because this needs to be seen in context which was that her main concern was what had happened to her after the operation.

On causation, Ms Pooley submits that if the court finds that the claimant’s haemorrhoids were grade 1 or 2, then it is common ground that she should not have been advised to have surgery, and she would not have had it. She would thereby have avoided the haemorrhoidectomy and the complications that flowed from it.

If the court finds the claimant’s haemorrhoids were Grade 3 or above, whilst surgery was indicated, the claimant would always have opted for conservative methods first. The logic of this position is supported by the fact the claimant had been suffering from rectal bleeding for a relatively short period of 4 months and therefore to jump straight to surgery seems unlikely given the advice about alternative methods in the EIDO leaflet and the advice she should have received from the defendant about alternative methods that could be tried.

The experts agree that in this scenario, resolution of the Claimant’s haemorrhoids would have required surgery at some point within the next two years. Ms Pooley submits that the treatment at that stage would have been patient choice and on balance, given the claimant’s presenting complaint was bleeding only, not any issue with prolapsing haemorrhoids, it is likely that she would have chosen to continue managing her bleeding with conservative methods. Beyond the persistence of the bleeding there were no other negative consequences. If the court however finds that she would in fact have had surgery at this point, then the claim is limited to up to two years of accelerated symptoms in accordance with Chester.

Ms Pooley submits therefore that the approach to the claimant’s evidence taken in Smith is distinguishable from this claimant’s case. In Smith, the claimant would have become quickly severely disabled if he had not had surgery, whereas all that the claimant in this case would have continued to suffer was bleeding.