[2025] EWHC 2025 (KB)

The defendant filed a supplementary witness statement dated 3 June 2025 after the Joint Statement produced by the experts on 17 April 2025. In this supplementary statement he said that “the diagnosis and grading of the Claimant’s haemorrhoids was based upon a combination of the rectal examination on 15 March 2019, flexible sigmoidoscopy on 21 March 2019 and the presenting symptoms as reported by the Claimant”. He further said that “when discussing symptoms my standard practice is to ask patients whether they have noticed any lumps or protrusions from the anus. Whilst I may not have used the phrase “prolapse” I do enquire whether any lump or protrusion present can be pushed back inside the anus. A note is then made in the records of the corresponding grade and in this case, it is recorded in the contemporaneous clinical letter that, “she does have 2^nd and 3^rd degree haemorrhoids””.

It was put to the defendant in cross-examination that there was no history given by the claimant of prolapsing haemorrhoids. He said that after a flexible sigmoidoscopy and once cancer or other causes of bleeding have been excluded and he is sure that the cause of bleeding is haemorrhoids, it is his standard practice to go into more detail with the patient of her haemorrhoid symptoms. His grading of 2 / 3 prior to surgery takes into account his previous examinations and the patient’s history.

He accepted that his clinic letter does not have this detail in it, but this accords with his practice of writing brief clinic letters. He pointed out that for example, his clinic letters do not refer to the claimant telling him that she was experiencing bleeding whilst running, although she is clear that she did tell him this. The fact that she was bleeding while running meant that her haemorrhoids were at least grade 3 as bleeding when running means a prolapse. It also demonstrates that he did elicit more relevant information from the claimant than is contained in his letters. He did accept however that if he had not obtained an appropriate history from the claimant in combination with the examinations, then it would not have been appropriate to grade her haemorrhoids and that this would be below the standard of a responsible Consultant Colorectal Surgeon.

The claimant said that the defendant told her that the biopsy had confirmed haemorrhoids and that this was the cause of the bleeding. She said that the defendant at no point told her what grade her haemorrhoids were, and she was not even aware that haemorrhoids were graded until she met Mr Thompson. However, she accepted receiving and reading the defendant’s letter which referred to 2^nd and 3^rd degree haemorrhoids. She said that she didn’t understand what this grading meant. She said that the defendant did not ask her if she could feel any lumps outside her bottom when emptying her bowels. She said that she did not query or clarify the grading of her haemorrhoids as “you trust your consultant that they are going to be giving you the best advice.”

Mr Thompson agreed that the use of the grade 1 – 4 grading system was consistent with the practice of a responsible body of Consultant Colorectal Surgeons. He was asked why therefore he had asserted in his first expert report that the defendant graded the claimant’s haemorrhoids based on their size alone. Mr Thompson agreed that if this is what the defendant did then he was operating a unique grading system, and he was not aware of any other surgeon who would do that. He was unable to explain why he had asserted that the defendant had done this or what evidence there was to support it. I therefore reject this evidence as I agree that there is no evidence to support it and in fact much to contradict it.

Mr Thompson’s first report dated 21 July 2021 said that in his opinion the claimant’s haemorrhoids “were Grade 1”. However, in the Joint Statement he stated that “it is likely that the Claimant had Grade 1 – 2 piles”. Despite this, in cross-examination he denied that his opinion had changed and said that for him the most important factor is that the claimant did not have prolapsing haemorrhoids. Mr Thompson was asked what his evidence was for saying that the claimant’s haemorrhoids were only Grade 1-2. He said that he could find no clear evidence that her haemorrhoids were prolapsed.

Mr Thompson agreed that as regards the 24 April 2019 letter in which the defendant graded the claimant’s haemorrhoids as grade 2 / 3, that any responsible body of Consultant Colorectal Surgeons reading that would understand what this means and would reasonably assume that this grading was made by taking a history from the claimant and by examination. He agreed that if the defendant’s evidence as to how he graded the haemorrhoids is accepted, then this would be consistent with a responsible body of Consultant Colorectal Surgeons. He agreed that severe constipation was consistent with a diagnosis of grade 2 / 3 haemorrhoids – it could be a known cause. The information provided to him by the claimant during the zoom consultation on 29 December 2021 that, “She was not aware of any prolapse but aware of something around anus every 2 weeks when she had to strain to empty her bowels. This swelling has not occurred since the haemorrhoidectomy” was put to him. He said that this is swelling in the perianal area which does not mean it was outside the anus. However, he agreed that a responsible body of Consultant Colorectal Surgeons would consider this information to be consistent with a grading of 2 – 3.

Professor Phillips said that by the time of this appointment, the defendant was able to exclude cancer or other serious causes of the claimant’s bleeding. The defendant was therefore, “now in decision making mode”. He said that the haemorrhoid grading system was understood by everyone. You cannot arrive at a grade without asking the questions. What this means is that a Colorectal Surgeon can just use a grading term without explaining what it means. The fact that the defendant has simply written the grades does not mean he has not asked the questions or taken the history because he could not have done anything else to arrive at a grading of 2 – 3. He said, “the question is – do you have a sensation of something falling out of your bottom that either goes back on its own or you need to push back, and then you might add does it stay inside, or does it fall out again - then I would write grade 2 / 3 etc”. If the court finds that no history was elicited of prolapse then this would not be in accordance with a responsible body of Consultant Colorectal Surgeons because it would be impossible to write the grading down because they are defining words.

He said that at the second appointment, if a responsible Colorectal Surgeon had identified a prolapsing haemorrhoid then this would trigger a further conversation with the patient about whether she sensed something coming out etc and on the basis of that, the surgeon makes a note of his grading – and on that basis he is then in a position to suggest management. Professor Phillips was therefore firmly of the view was that 2^nd and 3^rd degree haemorrhoids could not be written in the notes without those questions being asked.

Professor Phillips said that he had no reason to suppose that the defendant was not being truthful when he wrote grade 2 – 3 haemorrhoids and it was therefore logical that the defendant was given information by the claimant that was consistent with this grading.

Professor Phillips said that he fully accepted that it is not his role to find facts, but he did have a role to provide expert evidence which guides logic, because technical words have a factual meaning. The words that are used are defining – the fact that the haemorrhoids are described as 2^nd and 3^rd degree defines the haemorrhoids and prolapse. “This says everything you need to know. The evidence of prolapse is defined by the words used. This notation has a highly specific meaning and means that a history of prolapsing must have been obtained.”