[2025] EWHC 2025 (KB)

The evidence of the defendant is that, consistent with his usual practice, he would have relied on an examination and a history of prolapse before reaching a diagnosis of grade 2 / 3 haemorrhoids. It is not suggested that he is lying about this. If it is suggested that he is mistaken, then it is difficult to understand why his practice should be different for this claimant as opposed to all his other patients. The claimant does not suggest that his usual practice has changed. Therefore, the defendant’s evidence that this is his usual practice, and he would have followed it, is difficult for the claimant to overcome.

The medical records support the defendant’s diagnosis: The GP letter says “existing haemorrhoids” and “Examination: External haemorrhoids + potential bleeding point seen” - which is consistent with a description of at least grade 3 haemorrhoids. The claimant’s assertion that the GP has got this wrong is speculation, as is the suggestion that he has confused a skin tag with a haemorrhoid, particularly in circumstances where the GP has not been called as a witness and has not been challenged.

The 15 March 2019 clinic letter refers to “some bulky haemorrhoidal tissue” which is consistent with grade 3 haemorrhoids. The operation note is a description of grade 3 and 4 haemorrhoids, which means that it is likely that there were at least grade 3 haemorrhoids. There is nothing in the documentation that supports the claimant’s case that her haemorrhoids were only grade 1 / 2 and Mr Thompson is unable to explain the basis for this opinion.

The claimant’s evidence that her symptoms amounted to bleeding and a single skin tag is inconsistent with the medical records and also with the account she gave to Mr Thompson – that she was aware of “something around the anus every 2 weeks when she had to strain to empty her bowels”. It is also inconsistent with the fact that severe constipation is consistent with grade 2 / 3 haemorrhoids, and that the claimant told the defendant that she bled when running. The claimant’s evidence has been affected by hindsight and by the complications she suffered from the operation. Ultimately even the claimant’s own expert accepted in evidence that a diagnosis of grade 2 / 3 haemorrhoids was reasonable.

As regards the issue of advice, there is no dispute between the experts that with bleeding and a diagnosis of grade 2 and 3 haemorrhoids, it was reasonable to advise the claimant that surgery was the definitive treatment, that conservative management was unlikely to assist with grade 3 haemorrhoids, and that banding had variable success rates. This is what the defendant did.

As to the risk of anal stenosis: (i) the description of the risk set out in the EIDO leaflet was appropriate; (ii) the experts agree that this risk was less than 1% and the particularly poor outcome that the claimant had was even less than this; and (iii) the defendant’s letter of 20 April 2019 said that the claimant had been advised of “all the usual risks” and the fact that anal stenosis was one of these risks is corroborated by the fact that the defendant has written “anal stenosis” on the consent form and has also written several other risks.

The claimant did not raise any questions following her reading of the EIDO leaflet which contained all the alternative non-surgical options and all the risks of surgery. This suggests that the defendant had already been through these with her during the second consultation. The claimant signed the consent form without raising any issues or concerns.

The claimant’s letter of complaint dated 10 October 2019 was extensive in its complaints about her treatment following surgery but made no complaints at all about the process of diagnosis or advice about risks of surgery and alternative options. Even when the defendant’s letter in response dealt with these issues, her response made no comment on these aspects. It is implausible that if the claimant genuinely had complaints and concerns about these matters that she would not have raised them. The reason she gives – that she was worried she might lose her job – is also implausible, given the lengthy and extensive complaints she does make about many other aspects of her care.

The conclusion therefore is that the defendant did appropriately advise the claimant about alternatives to surgery and the risks of surgery.

As regards causation, Mr Barnes submits that the the Claimant’s assertion that she would not have gone ahead with surgery should be rejected because (i) she had significant symptoms, including bleeding, discomfort, difficulty cleaning herself and bleeding while running; (ii) whilst there had been some improvement with Movical this had not resolved her bleeding, therefore demonstrating that she had already tried a non-surgical method which was unsuccessful; (iii) she did not make any complaints about advice regarding non-surgical options and risks of surgery in her extensive complaint letter, nor in reply to the defendant’s letter in response which clearly raised these issues; (iv) the claimant’s evidence that she would have tried non-surgical methods first, is likely to be influenced by her knowledge of the outcome of the surgery in her case; (v) that the success of her case depends on this assertion (see Smith); (vi) her assertion is based on what Mr Thompson told her – namely that she had a grade 1 haemorrhoid, and that the bleeding would therefore be resolved by conservative treatment.

The claimant may well now believe that she would not have gone ahead with surgery, but this is tainted by the outcome and that her case turns on it. It is also inconsistent with an objective assessment of her situation (see Smith).

She had significant symptoms – bleeding for 4 months, bleeding when running, difficulty cleaning herself due to what she believed was a skin tag, something around her anus when straining to go to the toilet. Movicol had improved but not resolved her symptoms, but she clearly still wanted to have the operation. This demonstrates the importance of her symptoms to her.

She made no complaint about the advice regarding surgical versus non-surgical options, nor advice about risks in her lengthy complaint letter.

The claimant’s evidence is significantly affected by hindsight and the knowledge of the full extent of the unusual complications she has suffered. Therefore, what she is really saying is – had I been told I would end up like this, I would not have gone ahead. However, the duty on the defendant does not extend to warning her about the unusually severe risks she has suffered, but merely to warning her about the risk of anal stenosis as per the EIDO leaflet.

The claimant said in evidence that she trusted the defendant. Therefore, the likelihood is that if he told her that the definitive treatment for her haemorrhoids was surgery and that conservative management including banding was unlikely to be effective – then the overwhelming likelihood is that she would have opted for surgery (as in fact she did).

The claimant read and understood the EIDO leaflet but raised no concerns about alternative treatments or surgery risks, even though these are clearly set out in the leaflet.

In any event, it is agreed between the experts that, if grade 3 haemorrhoids were treated with conservative measures including banding, it is likely that they would have recurred within 2 years. In that situation, it is likely that the Claimant would have come to haemorrhoidectomy, with the same risk profile and so the same outcome, and damages would therefore be limited to acceleration of the Claimant’s symptoms by 1.5 years (see Chester).