KB-2023-001134 - [2025] EWHC 2121 (KB)

Background facts

The Claimant was born in 1996 with congenital pulmonary atresia (that is, a defect of the pulmonary valve which controls blood flow from the right ventricle to the pulmonary artery which, in turn, carries blood from the heart to the lungs) and a ventricular septal defect (that is, a hole in the wall separating the right and left ventricles).

She underwent a number of surgical procedures, including:

Between 2014 and 2021 the Claimant had three children.

In September 2021 the Claimant was seen by Dr Jansen, the Claimant’s lead treating Consultant Cardiologist from 2019 until 2022. The Claimant reported being breathless on minimal exertion and being fatigued at work, associated with progression of pulmonary stenosis, aortic regurgitation and aortic dilation. Dr Jansen considered that the pulmonary valve required replacement and she discussed the possibility of a Personalised External Aortic Root Support (“PEARS”) procedure which involves the production of a bespoke ‘jacket’ which is then placed around the aorta to provide support to the dilated aorta and which can also assist with the management of the valve.

On 15 September 2021 the Claimant’s condition was discussed at a Joint Adult Congenital Cardiology/Cardiac Surgery Multi-Disciplinary Team (“MDT”) meeting at the Freeman Hospital to consider further intervention. The consensus was that there was a clear indication for pulmonary valve replacement. There was also discussion as to whether the Claimant required concomitant aortic valve surgery. It was decided to proceed with a repeat cardiac MRI to assess the degree of aortic regurgitation.

The MRI scan was performed on 12 November 2021. It showed severe aortic regurgitation and a dilated left ventricle and dilated aortic root and ascending aorta. A letter to the GP and to the patient dated 23 November 2021 expressed an initial view about surgery.

The Claimant was discussed again at an MDT meeting on 15 December 2021 attended by 5 cardiologists, 3 surgeons including Mr Nassar, and 3 registrars. The MRI results were reviewed and it was agreed that the Claimant required (a) pulmonary valve replacement surgery to treat the significant stenosis (narrowing) of her previous valve; (b) that she should be offered a PEARS procedure for her dilated aorta; and (c) that if, following the PEARS procedure, the aortic valve remained incompetent then the aortic valve should be repaired or replaced during the same surgery.

Dr Jansen says that she called the Claimant to discuss the outcome of the MDT, although there is no note of that call. Mr Nassar was the only surgeon at the hospital who carried out PEARS. I am informed that his secretary sent a letter on 29 December 2021 inviting the Claimant for a pre-operative assessment.

In January 2022 the Claimant attended a preoperative assessment clinic with the consultant anaesthetist and a coronary angiogram was performed. It was recorded that the Claimant was suffering worsening symptoms of chest pain, palpitations and shortness of breath. The Claimant also had a CT coronary angiogram to assist with surgical planning and for the printing of the PEARS ‘jacket’, being a bespoke medical device. Mr Nassar was not available to see the Claimant.

On 17 April 2022 the Claimant was admitted to her local hospital, Darlington A&E, with chest pain and breathlessness. She had a CT angiogram on 18 April 2022 which noted that her heart was enlarged. On 19 April, the Claimant spoke to Dr Rybicka, an adult congenital heart consultant, by telephone, and it was agreed to bring the Claimant’s surgery forward in light of her recent emergency admission and deteriorating symptoms.

On 24 April 2022 the Claimant was admitted to the Freeman Hospital to undergo planned cardiothoracic surgery by Mr Nassar on the following day. Mr Nassar was, again, unavailable on 24 April and so the Claimant was seen by Dr Mohamed, Mr Nassar’s senior registrar. According to Dr Mohamed’s witness statement, the Claimant already knew the kind of surgery she was due to have, having had detailed discussions with Dr Jansen. He says that he “ended up quoting a mortality (risk of death) of around 20%” and that the Claimant signed a consent form recording this risk. In the event, the surgery was cancelled because of a lack of beds in the Intensive Therapy Unit (“ITU”).

On 2 May 2022, a bank holiday Monday, the Claimant was re-admitted to the Freeman Hospital for planned surgery by Mr Nassar on the following day. On the morning of Tuesday 3 May, Mr Nassar saw the Claimant and she signed a consent form which stated that there was a 5-10% risk of mortality. Mr Nassar’s evidence is that he considered that Dr Mohamed had overestimated the risk of mortality. He says that he tore up Dr Mohamed’s risk assessment as he did not want there to be two different consent forms on file because this might cause confusion.

According to Mr Nassar, he reviewed the Claimant’s CT scans from January 2022 prior to the surgery. He apparently considered that the aorta was in close proximity to the sternum but that it was not adhered to the sternum. He recognised the real risk of injuring the aorta when performing the sternotomy, but his clinical judgment was that it was not necessary or appropriate to place the Claimant on bypass given the risks that this would involve.

The Claimant was brought into theatre at around 10:45 on 3 May 2022. Mr Nassar had two clinicians assisting him, to help lift the sternum during the process of opening the chest. Mr Nassar says that he performed “point of care” testing with the anaesthetist which involved using ultrasound to check the position and patency of the groin vessels to be used intraoperatively in emergency, that is if the patient needs to be established on cardiopulmonary bypass. He says he marked the Claimant’s femoral vessels using a skin marker on both the left and right side - marking both a vein and an artery on both sides - for use if required. He says that his preference was to use the left groin as access if required given the previous complication with a balloon rupturing in the artery on the right side. Supplies of blood and blood products were also put in place in case of emergency.

According to his first statement, knife to skin occurred at around 12 noon and he says he spent the next 25 minutes “meticulously freeing the cardiac structures prior to sternotomy”. In the course of performing the sternotomy, Mr Nassar accidently cut the wall of the aorta.

Mr Nassar could not stem the bleeding sufficiently by applying compression to the damaged aorta. His anaesthetic colleagues activated the massive transfusion protocol and the Claimant was given blood and blood products. Mr Nassar states that he recalls exposing the vessels in the left groin, in preparation for emergency bypass. At some stage, Mr Nassar was joined in theatre by two other consultants, Mr Fabrizio De Rita and Professor Stephen Clark, to provide assistance. They would have had to respond to the emergency call and “scrub in”. In his first witness statement Mr Nassar stated that his best estimate is that they would have been present in theatre within ten minutes of the injury occurring. Mr De Rita attempted to cannulate the left femoral vessel, but when he placed a cannula in the left femoral artery it dissected. The fact that cannulation was not attempted before Mr De Rita arrived in theatre gives some indication of the time spent exposing and preparing the groin vessels. Mr De Rita started exposing the vessels in the right groin for cannulation.

In the meantime, Mr Nassar says that he was able to canulate the ascending aorta and bypass was established using the central cannulation. The operation proceeded to repair the ascending aorta and relace the pulmonary and aortic valves. The PEARS procedure was not undertaken due to the injury to the aorta.

The anaesthetic intraoperative note of 3 May 2022, timed at 13:58 BST, states: “saw accidently cut through the aorta causing massive haemorrhage”. Mr Nassar says now that when he refers to the saw slipping, he means that it went to a greater depth than he intended, rather than any actual loss of control.

There is a note in the medical records from Dr Jansen, timed at 20:12 on 3 May 2022, recording her conversation with the Claimant’s husband by phone that evening. Mr Nassar also telephoned the Claimant’s husband when he finished the surgery which was late evening on 3 May 2022. He subsequently met with the Claimant’s parents on his return to the UK.

The Intensive Care Medicine admission note of 4 May 2022 timed at 01:54 similarly describes the intraoperative events as “during sternotomy saw accidently cut through the aorta causing massive haemorrhage. Massive Transfusion protocol activated and bloods with blood products given without delay”.

A Cardio Services Communication Note dated 12 May 2022 authored by a James Park refers to a discussion with the Claimant’s husband. It is recorded that the injury “was ‘not on the cards’ when she went for surgery”. The Claimant’s husband’s evidence was that these were the words used to him, albeit his recollection was that they came from Mr Nassar but they may have been Mr Park’s words. The note records “we have reached the stage where it would be appropriate to concentrate on symptom management and withdraw life support once this has been achieved” and arrangements were made to contact the specialist nurses in organ donation. In the event, life support was not withdrawn and the Claimant’s condition eventually began to improve, but this note illustrates the seriousness of the injuries sustained by the Claimant.

The operation note was not written by Mr Nassar until 19 May 2022, some 16 days after the operation. Mr Nassar says that this is because he flew to Kenya on 4 May 2022, the day after the Claimant’s surgery, on a medical charity mission and that it was not possible for him to complete the operation note before he left. The operation note states: “chest re-entry through redo-sternotomy was complicated by injury to the aorta causing catastrophic haemorrhage”. The note does not explain how the aorta was injured.

A letter was sent to the Claimant’s GP, stated to be typed on 1 June 2022, by the Defendant Trust which included the statement “During sternotomy saw cut through the aorta causing massive haemorrhage”. There is no mention of the dissection of the left femoral artery during attempted cannulation for the bypass. It is recorded that “Managed to get onto CPB after 20 minutes downtime with cerebral Sats persistently below 20 during resuscitation period with severe hypotension and no cardiac output”. This reflected the wording in the intensive care admission note of 4 May 2022.

The Defendant Trust operated the Datix online incident reporting system. It appears that no entry was made on Datix contemporaneously in respect of the Claimant’s surgery of 3 May 2022. I have not seen the Trust’s policy in relation to the incidents which should be reported on Datix. Nor was any Serious Incident investigation instigated contemporaneously.

Some details concerning Datix and the position in relation to Serious Incident investigations were provided by the Defendant, via the Fourth Witness Statement of Rachel Thompson, solicitor for the Defendant, served during the course of the trial. Ms Thompson explains that a pre-action letter of claim was sent to the Trust on 28 July 2022 which prompted internal investigations. This resulted in a Serious Incident triage on 10 October 2022 at which it was determined that the incident did not meet the relevant criteria to trigger a Serious Incident investigation because the injury was a recognised complication of surgery. The incident appears to have been considered further at a Clinical Governance (Mortality and Morbidity) meeting on 14 October 2022. Thereafter, a “retrospective datix” report was submitted on 2 February 2023, apparently at the request of legal services. The report does not mention the dissection of the femoral artery. The report states that the case was “awaiting review”, but there is no evidence that any subsequent review was carried out.