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

Third party reports relied on by the Claimant

Mr Elgot sought to rely on a report on the Adult Cardiac Surgical Service unit at the Defendant Trust by the Royal College of Surgeons dated 23 July 2021. The report followed concerns about the culture in the department, including allegations of bullying by adult cardiac consultant surgeons, issues with attendance at, and the efficacy of, MDT meetings, and discord within the unit regarding the allocation of ‘unstable’ cases. The report was critical of a number of aspects of the unit, including in respect of the culture surrounding reporting and the reporting of all patient safety incidents on Datix, the online incident reporting system.

It is stated on the first page of the report that the information provided indicated “the unit was comprised of seven adult cardiac surgeons … three congenital cardiac surgeons and four thoracic surgeons…”. In the circumstances, Mr Elgot, counsel for the Claimant, submitted that the report applied to the congenital cardiac surgeons and so included the team to which Mr Nassar belonged.

The Defendant objected at the outset of the trial to the Claimant’s reliance on the report on the basis that, it was said, the report was irrelevant to the congenital cardiac unit. In the course of their evidence both Mr Nassar and Dr Jansen made clear that they did not understand the report to relate to the congenital cardiac surgeons and that their understanding was that it was confined to the adult cardiac surgeons.

Mr Elgot’s alternative point was that even if the report was not directly applicable, it is likely that there was some overlap in respect of the working practices and culture of the Defendant Trust’s adult cardiac surgeons and adult congenital cardiac surgeons.

I have considered the report and have concluded that it does not expressly claim to apply to the congenital cardiac surgeons, notwithstanding the manner in which the unit is described. I have no reason not to accept the clear evidence for Mr Nassar and Dr Jansen that the focus of the inquiry by the RCS did not concern the congenital cardiac surgeons. Nor do I consider that it is appropriate to assume, without more, that the unit comprising the congenital cardiac surgeons were affected by the same culture or failings as the adult cardiac surgeons. In all the circumstances, I have therefore reached the conclusion that it is not appropriate to place weight on the findings of the RCS report.

Shortly before the start of the trial the Claimant made a specific disclosure application to seek an unredacted copy of a report by the Leeds Teaching Hospitals NHS Trust entitled: “An independent and external review to understand events that took place in the Adult Cardiac Surgery Department at the Newcastle Upon Tyne Hospital NHS Foundation Trust, between the period 1 January 2018 and 1^st June 2021”.

The Leeds report states that it relates to “a series of cases in which poor outcomes occurred” which was brought to the attention of the Clinical Governance and Risk Department at the Defendant Trust in May 2021. The Defendant served evidence in response to the application explaining why it considered the report to be irrelevant to the issues in this case, not least as it was said that the report related to an individual surgeon, who was not Mr Nassar, nor connected to the case in any way and, again, related to the adult cardiac surgery department and not the congenital cardiac surgery department. Mr Elgot indicated at the start of the trial that the application was not pursued. Again, for the sake of completeness, I confirm that I have reached the conclusion that it is not appropriate to place weight on the findings of the Leeds report in this case.