This claim arose from an extended right hemicolectomy (removal of the right side of the colon) to treat the claimant’s colonic cancer. The surgeons removed the diseased part of the colon and reconnected it to the ileum (final section of the small intestine) with a side-to-side anastomosis (join).
After a few days, the patient developed sepsis. Emergency exploratory surgery was carried out, during which multiple dense adhesions were found (fibrous bands that commonly form between tissues and organs following surgery).
The ileum was also grossly obstructed close to the anastomosis and the bowel appeared ‘twisted’ by 180º. The anastomosis was disconnected and an ileostomy created (diverting the small bowel to an opening in the abdomen).
Sadly however, the patient’s sepsis persisted and he suffered disabling hypoxic brain injury.
The patient alleged that the ileum must have been twisted when the surgeon joined it to the remaining part of the colon and formed the anastomosis during the original surgery (hemicolectomy). The trust’s case was that the bowel was flattened and folded (not twisted in the manner commonly understood by the word ‘twisted’) which had been caused non-negligently by adhesions.
At the trial, the judge accepted the evidence of the surgeon who had carried out the emergency laparotomy that the bowel obstruction was relieved by taking down the surrounding adhesions and that the anastomosis had therefore been properly formed. The claim was dismissed.
It was surprisingly difficult for the surgeon to describe (in writing) the obstruction found during the emergency surgery. We considered the inclusion of a drawing as an exhibit to his witness statement, but as the obstruction was a complex three-dimensional object, he struggled to show it on paper.
In giving evidence at trial, however, he made excellent use of a home-made model to assist in explaining the relevant anatomy.
Although there was no IT equipment available in the court-room, we also used a laptop to show the judge a short video of a standard hemicolectomy, which served to show how unlikely it would have been for the twist to have occurred during the first procedure.
This outcome was obtained notwithstanding an enormous difference in the costs incurred by both sides. The claim was funded by a Conditional Fee Agreement (CFA) backed by an After the Event (ATE) insurance policy. According to the claimant’s own costs estimate, had he been successful, his costs would undoubtedly have exceeded £500,000. In contrast, the costs and disbursements incurred on behalf of the trust totalled £64,000, most of which was recovered from the claimant’s insurers.
Think outside the box!
This case serves to show the importance of choosing the most appropriate and visually effective way of describing complex anatomy and surgical technique – even if this means creating three dimensional models! Lawyers and judges usually have little or no medical background, but need to understand what has happened. Visual aids can make the understanding of your Defence so much easier and should be considered in all complex cases.