[2025] EWHC 2025 (KB)

The claimant had her first consultation with the defendant on 15 March 2019. She said in her witness statement that the defendant asked her for her history including how often she went to the toilet and about her symptoms which she said was some bleeding after going to the toilet with occasional abdominal pains. He asked her if she had lost any weight which she confirmed she had not, and he asked her what medication she was taking, her family history and her past medical history. In cross-examination, she said that she imagined she would have told the defendant about the skin tag and the difficulty cleaning it.

However, when she gave evidence, she said for the first time, that she told the defendant that the bleeding was becoming a nuisance particularly in respect of her long-distance running hobby. She found that she was bleeding after a run. She said that she told him that the bleeding was aggravating if she wanted to do a long run. It didn’t happen all the time and, in the consultation, she queried with the defendant whether it might be “runner’s tummy”. It is notable that this was the first time the claimant had given this account as this was not referred to in her witness statement nor when she saw was seen by both experts. The defendant said in evidence that this bleeding whilst running meant that it was very unlikely that she had grade 1 or 2 haemorrhoids. This bleeding indicates that it is caused by something prolapsing out of the anus to cause the bleeding (meaning that the haemorrhoids were grade 3 or 4).

The claimant said in her witness statement that the defendant then carried out an examination and told her that she had some anal skin tags and haemorrhoids, which he thought was causing the bleeding and that he wanted to arrange for a flexible sigmoidoscopy to have a better look. In evidence the claimant said that at no stage did the defendant ask her about prolapsing haemorrhoids.

The claimant said in cross-examination that she was only aware of one skin tag because that was all she could feel. She wasn’t sure if it was that was causing the bleeding and the only issue she had was trying to keep the skin tag clean after opening her bowels.

She also said that she was not aware that she had an anal fissure at the time the surgery was carried out. It was pointed out that was in the letter dated 21 March 2019 which she received. She said that this was not mentioned to her by the defendant in consultation.

The defendant wrote a letter to the GP dated 21 March 2019. In evidence the defendant explained that his practice was to dictate such a letter immediately after the consultation and that the letter represented his contemporaneous note of the consultation. The letter would then be typed by his secretary and sent out – and therefore the date of 21 March 2019 on this letter represents the day on which it was typed and posted by his secretary. The letter was sent to the GP and copied to the claimant. The claimant agreed that she had received it. The defendant’s evidence on this was not challenged and I accept therefore that this letter represents his virtually contemporaneous note of the consultation.

The first paragraph of the letter recounts the claimant’s history. Of relevance it states, “She has a four-month history of rectal bleeding with no anorectal pain or discomfort. Her bowels open once every 4-5 days and there is no significant change in her bowel habit. There is no family history of colorectal cancer but she does get occasional lower abdominal pains. There has been no significant weight loss.” The next paragraph states, “Abdominal examination was unremarkable. Rectal examination revealed some anal skin tags and chronic posterior fissure. Rigid sigmoidoscopy was normal and proctoscopy confirmed some bulky haemorrhoidal tissue. I have arranged for her to have flexible sigmoidoscopy.” The defendant said that it was very common for him to summarise findings in a short way rather than write everything down in a clinic letter.

A proctoscopy is where a short, rigid tube called a proctoscope is inserted into the lower end of the rectum and anal canal to visualize the area for abnormalities. It is used to diagnose conditions in the lower part of the colon and anus. It can identify prolapsing haemorrhoids when inserting and removing the proctoscope.

A rigid sigmoidoscopy is an examination of the rectum and the lower part of the colon using a short, rigid tube called a sigmoidoscope. This test helps in diagnosing the cause of rectal bleeding or other anal symptoms, or changes in bowel habits. It can also be used to take tissue samples (biopsies). It is a longer instrument than a proctoscope and can see up to 15cm.

The defendant said that he could not now recall the consultation he had with the claimant. His practice at first appointment was to exclude more significant / sinister causes of the bleeding. The claimant’s four-month history of rectal bleeding, plus the fact that her bowels were only opening every 4 – 5 days, meant that haemorrhoids would have been one of his differential diagnoses. If the claimant had reported haemorrhoids to him, he would not necessarily have put this in his clinic letter because it wasn’t his practice to include everything. He agreed that the letter does not refer to prolapsing haemorrhoids. He said that a proctoscopy and rigid sigmoidoscopy are both very uncomfortable examinations so it can be difficult to ascertain the exact amount of prolapse and bulky haemorrhoid tissue. If he had found both this would not necessarily be in his clinic letter. What he meant by bulky haemorrhoidal tissue is that when he was withdrawing the proctoscope, the haemorrhoidal tissue prolapsed out. He did not grade the haemorrhoids at that time and his focus at that time was to rule out anything more serious (such as cancer) and that the purpose of the flexible sigmoidoscopy was to rule out other pathology for the bleeding such as colorectal cancer. A flexible sigmoidoscopy can also visualise haemorrhoids to a certain extent.

He said that the claimant may be correct that the chronic posterior fissure was not discussed as it was an incidental finding and causing no pain. He said that the fissure was healed so was not symptomatic and therefore did not require addressing. He said that a healed fissure was not likely to be a substantial cause of bleeding over 4 months.

It was put to Mr Thompson in cross-examination that the reference to “bulky haemorrhoidal tissue” meant tissue that prolapsed when the proctoscope was withdrawn. He agreed that it could mean that the haemorrhoids were either Grade 2 or 3 depending on whether the haemorrhoids returned spontaneously or had to be digitally replaced.

Regarding the claimant’s account of bleeding whilst running, Mr Thompson accepted that when running, the external sphincter would be closed which would contain any bleeding until the bowels were subsequently opened.

Professor Phillips was also asked about this, and he said that bleeding whilst running would be likely to be caused by prolapsed haemorrhoids which become traumatised and then bleed. If the haemorrhoids were not prolapsed, he would not expect them to cause visible bleeding on the outside whilst running. He explained that the reason for this is that the anus is continent (ie: closed) and he wouldn’t expect it to be incontinent when running. If the blood had come from haemorrhoids inside the anus, he would not expect this blood to come out during a run. He said that marathon runners may find blood in their stools after running, but the complainant’s evidence is that she had blood on her underwear when running.

Professor Phillips said that the only cause of this bleeding was haemorrhoids. Infrequent bowel function of itself does not cause rectal bleeding and cancer or other causes were ruled out by the defendant’s investigations. The only other possible cause of such bleeding would be a fissure – but the claimant did not have an active fissure, only a chronic fissure – meaning that it had healed. He described a chronic fissure as a “tombstone” of a past acute fissure. The fissure has healed and is asymptomatic and inconsequential but leaves a scar. This chronic fissure would not therefore cause the claimant’s bleeding and in any event, bleeding from a fissure is almost always associated with pain and discomfort which the claimant denied. Therefore, he concluded that bleeding while running must have come from prolapsed haemorrhoids which were likely to be grade 3 or 4 as they were outside the body.

Initially the claimant and Mr Thompson alleged that the claimant’s fissure was a relevant finding both in terms of it being the cause of the claimant’s bleeding, but also in respect of the risks of surgery. It was alleged in the Particulars of Claim that the defendant had been negligent in failing to consider the significance of the fissure and failing to advise and treat it before offering surgery. However, by the end of the trial, Ms Pooley conceded that Mr Thompson was wrong about this and that a chronic (healed) fissure was of no relevance to the issues in this case. In my view she was right to make that concession given that both experts now agree that the claimant’s chronic fissure could not have been the cause of her bleeding and was of no relevance or significance to the issues of advice and treatment.

Professor Phillips said that at this first consultation, the defendant would have been in “diagnostic mode” regarding the cause of the claimant’s bleeding and whether the cause could be cancer or a condition such as ulcerative colitis. He said that this takes priority for obvious reasons. The fact that haemorrhoids, some anal skin tags and a chronic posterior fissure were seen would be noted but would not be relevant to explore further at that time as the priority would be ruling out a more serious cause for the bleeding and to decide what further investigations were needed – either a flexible sigmoidoscopy or a colonoscopy. He said that it followed that there was no requirement at that time to grade the complainant’s haemorrhoids, nor to explore the issue of prolapse and that not to do so was consistent with the actions of a responsible body of consultant colorectal surgeons in a similar situation.