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

Overview of the factual and expert evidence

As a result of the hypoxic brain injury sustained during the surgery, the Claimant was not in a position to give evidence. However, certain WhatsApp messages from the Claimant to her mother have been disclosed. The Claimant’s messages on the morning of her surgery, 3 May 2022, demonstrate that she was clearly very concerned about the prospect of the surgery being cancelled for a second time: “I’m starting to worry again incased [sic] it get cancelled” and “It’s really bad if they cancel again”.

I heard oral evidence from the Claimant’s husband and Litigation Friend, the Claimant’s mother and the Claimant’s aunt. All three were evidently trying to assist the court and to give accurate evidence. I am very grateful to all three.

Whilst the Claimant was taken to hospital appointments by family members, she attended the relevant consultations with the clinicians by herself. The Claimant’s husband gave evidence as to the Claimant’s history of congenital heart issues and also as to the events following the surgery on 3 May 2022 as well as detailed evidence concerning the on-going care of the Claimant which he has provided, together with the Claimant’s mother and aunt, and the impact of the Claimant’s injuries on the Claimant and on their three young children. Together, the three witnesses describe very clearly the serious on-going difficulties which the Claimant faces in daily life, including impacts on her cognition, on her sight, on her loss of independence and in relation to ongoing depression.

Some limited aspects of the evidence of the Claimant’s husband touched on points which he said that the Claimant told him in relation to the consenting process. In large part, this evidence is said by the Claimant’s husband to be information which the Claimant has remembered and told him about since the incident as opposed to information which the Claimant relayed to him prior to the surgery. Ms Power, on behalf of the Defendant, objected to such evidence in circumstances in which the psychiatric report of Professor Ann Mortimer dated April 2025 made clear that, in her opinion, “owing to extensive retrograde amnesia occasioned by lengthy hypoxaemia, [the Claimant] is unable to recall either of the two consenting procedures to any meaningful degree” and “this has rendered her incapable of discussing what she was told, what she understood, and what, if anything, she did about it”.

Having had regard to Professor Mortimer’s report, I do not consider it appropriate to place weight on the few fragments of the Claimant’s recollection relating to the consenting process which the Claimant’s husband relays in his statement. At best, those are likely to be partial and incomplete recollections and, as a result, may be materially misleading.

The Defendant called Dr Jansen to give oral evidence. Dr Jansen is a consultant Adult Congenital Cardiologist, employed by the Defendant Trust since 2016. She graduated as a cardiologist in 2010. She first met the Claimant in 2019 when the Claimant was 23 years old and pregnant with her third child. She had ongoing contact with the Claimant throughout 2021 and in the months prior to the surgery on 3May 2022. The notes of the ward round with Mr Nassar on the morning of the surgery record her as being present. It is evident that the treating cardiologist provides a pivotal role in relation to the treatment of a patient with congenital heart issues such as the Claimant. Dr Jansen was, in my view, attempting to provide fair and accurate evidence for the assistance of the Court.

Mr Nassar was also called by the Defendant. He has been a consultant in Paediatric and Adult Congenital Cardiac Surgery with the Defendant Trust since 2016, having graduated (in 2001) and trained in Egypt until 2008 when he moved to France. He has practised in England since 2012 and took up his consultancy post in 2016.

A high proportion of Mr Nassar’s surgery, approximately one third, is “re-do” surgery, that is, the patients have had surgery which has involved opening the chest on previous occasions, sometimes on multiple previous occasions. Between 2016 and the Claimant’s surgery in 2022 he states that he has performed over 650 cardiac procedures and at least 193 of those were “re-dos”. The Claimant’s surgery in May 2022 was only the second time in which he has experienced a catastrophic injury to the aorta; on the other occasion, involving a child, the bleeding was controlled immediately and did not require emergency bypass.

As noted at [14] and [15] above, a witness statement from Mr Mohamed was served and his evidence was admitted under the Civil Evidence Act. The Claimant did not adduce any evidence which contradicts the contents of Mr Mohamed’s statement to any material extent. In relation to the limited matters he deals with in his statement, I am satisfied that it is appropriate to place weight on the contents of his statement.

Mr John Yap, instructed by the Claimant, is an NHS consultant cardiac and aortic surgeon. He has been a full time NHS consultant in cardiac surgery for 22 years. In 2003 he became a consultant at The Heart Hospital, University College Hospital, which unit, in 2015, amalgamated with St Bartholomew’s Hospital and he has been the senior surgeon for major aortic surgery at Barts Heart Centre since 2015. He is the convenor of the Barts Aortic MDT which meets every two weeks. In his oral evidence he stated that this is the largest aortic unit in the country. His aortic surgery is about one third of his work and includes congenital aortic cases. He is therefore involved in the aortic aspects of the adult congenital cardiology unit, but he was careful to emphasise that he is not a congenital cardiac surgeon.

Mr Neil Roberts, instructed by the Defendant, has been a consultant cardiac surgeon for over 14 years. In 2011 he became a consultant at The Heart Hospital and from 2015 has been at the Barts Heart Centre. He has been a colleague of Mr Yap, working at the same centres, since being a consultant. He has performed more than 2,500 open heart procedures. Approximately 5% of this surgery could be classified as aortic, including aortic valve surgery, though he explained that the term “aortic surgeon” tends to be used for those specialising on the aortic arch and above; he does not take part in the Barts Aortic MDT. He was elected to be Dean for the Society of Cardiothoracic surgery in 2019 and is heavily involved in surgical training, being a full examiner in the FRCS (C-Th). He was Surgical Clinical Governance lead from 2015 to 2019 at the Barts Heart Centre.

As is apparent from the above, unlike Mr Nassar, neither Mr Yap nor Mr Roberts is a consultant in congenital cardiac surgery. Neither, therefore, were able to provide expert evidence on certain aspects of the surgery which the Claimant was due to undergo on 3 May 2022, including the PEARS procedure. However, the key issues in this case concern the re-do sternotomy, preparatory steps for the sternotomy having regard to the risks posed by the proximity of the aorta, and the consenting process. Both Mr Yap and Mr Roberts are experienced in re-do sternotomies although neither perform re-do sternotomies as frequently as Mr Nassar. Mr Yap has particular experience of sternotomies in the context of aortic surgery in addition to his expertise in cardiac surgery. In addition to his expertise in cardiac surgery, Mr Roberts has particular experience in terms of clinical governance and teaching; he explained that safe approaches to re-do sternotomies is an issue which comes up regularly in this role and he is familiar with a range of surgical approaches and clinical opinions regarding the problems posed. Mr Roberts agreed, in cross-examination, that re-do sternotomies in cases with an enlarged aorta are rare and he only has experience of a “handful” of such cases. Both experts were candid about the limits of their expertise and I am satisfied that both were well placed to provide opinion evidence on the key issues which they addressed, including interpretation of the pre-operative CT imaging.

Ms Power made various criticisms of Mr Yap’s evidence, including Mr Yap’s failure to include the required CPR Part 35 declaration in his report. Mr Yap apologised for this omission and accepted full responsibility for the fact of its omission. There was also some force in Ms Power’s submissions that, during cross-examination, it became evident that on certain issues Mr Yap had overstated the position in his report and on other issues he had changed his position to some extent since his report. These criticisms do, however, have to be seen in the correct context of an expert having to respond to emerging evidence, including witness evidence from Mr Nassar as to the surgical technique he employed. Having had the benefit of hearing Mr Yap give oral evidence, I am satisfied that his evidence was given in good faith and that he was endeavouring to assist the court by providing his honestly held, and often strongly held, expert opinions.

Similarly, Mr Roberts’ opinion evidence was also developed and refined as further information became available. In particular, his written report omitted to consider, at least in any detail, the important issue of the proximity of the aorta to the rear of the sternum (see [94] below), which issue was critical to the risks of the surgery and the preparatory steps which should be taken; he only addressed this issue in the joint statement. In general terms, however, he was careful and considered in his approach to giving evidence and, again, I am satisfied that his evidence was given in good faith and that he was endeavouring to assist the court by providing his honestly held expert opinions.

In her skeleton argument Ms Power indicated that the Defendant intended to rely upon the report of Mr Anderson, one of the two experts originally instructed by the Claimant, and which, in summary, was supportive of the Defendant’s position. In response, Mr Elgot, for the Clamant indicated, somewhat ambitiously, that the Claimant sought to rely on the report of Professor Keenan, the second expert originally instructed by the Claimant and which, in summary, was supportive of the Claimant’s case. Ms Power opposed that application and objected to Professor Keenan’s report remaining in the bundle.

The reports of Mr Anderson and Professor Keenan had been considered by Mr Yap and Mr Roberts. Mr Roberts noted in his report that certain of his views accorded with certain of the views expressed by Mr Anderson. In circumstances in which Mr Yap and Mr Roberts had considered the reports of Mr Anderson and Professor Keenan I indicated my provisional view that the relevant reports should remain in the bundle and that the issue of reliance on those reports could be addressed in due course in the event that either party sought to place weight on aspects of those reports. Neither Ms Power, nor Mr Elgot, considered it necessary to pursue their respective applications in light of that preliminary indication. Ultimately, limited reference was made to the reports of either Mr Anderson or Professor Keenan during the trial.

Whilst I note that certain of Mr Roberts’ opinions are consistent with Mr Anderson’s views, I do not consider that I am assisted by the opinions set out in the report of Mr Anderson. This is because Mr Anderson’s report was prepared at a very early stage of the proceedings and he did not have the benefit of the far more extensive evidence that has been considered by both Mr Yap and Mr Roberts, including the witness statements and oral evidence of Mr Nassar, and further because I have had the benefit of oral evidence from Mr Yap and Mr Roberts, which evidence has been tested in cross-examination. Neither Mr Yap nor Mr Roberts have sought to place any particular reliance on the opinions expressed by Professor Keenan in his report which was also prepared at a very early stage and without the benefit of the much more detailed information now available; even if it were permissible to do so, I do not consider that it would be appropriate to place weight on it.