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Nadia Whittaker successfully resists an appeal of the dismissal of the claim against a plastic surgeon

Appearing before Mr Justice Henshaw in Chilton v Payne [2024] EWHC 451 (KB), Nadia Whittaker instructed by Angelicka Dom Paul of Medical Protection Society is successful in resisting an appeal from the first instance decision by Recorder Khangure KC on 18 November 2021 dismissing the Claimant’s claim for damages against by Mr Payne, Consultant Plastic & Aesthetic Surgeon for an alleged negligent failure to ensure that she received adequate follow up care following an abdominoplasty.

Mrs Chilton’s claim and the trial

Mrs Chilton underwent an abdominoplasty performed by Mr Payne, Consultant Plastic & Aesthetic Surgeon, a self-employed plastic surgeon at Dolan Park Hospital, which was part of the Hospital Group. The Claimant underwent an abdominoplasty procedure performed by Mr Payne on in May 2013. She was dissatisfied with the outcome although did not pursue any allegations in relation to the standard to which it was performed. Mr Payne agreed to perform a revision abdominoplasty. This took place on 19 June 2014. Mrs Chilton did not allege any negligence in relation to that procedure. Following the second procedure, Mrs Chilton was reviewed post-operatively by specilist nurses employed by the Hospital Group. It was anticipated that an appointment with Mr Payne would take place around a month after the second surgery. This was in line with the policy at the Hospital Group, the documentation that Mrs Chilton received and Mr Payne’s own practice. However, for reasons that were very much in issue at trial, Mrs Chilton did not book an appointment with Mr Payne for 17 July 2014. Instead, she believed that she was booked to be reviewed by Mr Payne on 31 July 2014. On 18 July 2014, Mrs Chilton attended an NHS walk-in centre as she was suffering from some possible infection at the surgery site. She was prescribed antibiotics. On 31 July 2014, Mrs Chilton rang the Hospital Group and was apparently informed that no appointment had been booked for her on that day. On 6 August 2014, she attended an NHS hospital as she was suffering from abdominal pains and some collection of fluid around her stomach, which suggested serious infection. She was treated thereafter on the NHS. It was agreed by the experts on both sides that her aesthetic outcome would have been better if she had been reviewed by Mr Payne on 17 July 2014 as he would have treated infection more efficiently at an earlier stage. The issue at trial was whether Mr Payne was liable for the fact that an appointment had not been booked for Mrs Chilton on 17 July 2014. There was a complicating factor in that the Hospital Group went into liquidation between Mrs Chilton’s procedure and the issue of proceedings. Mrs Chilton made the decision to pursue Mr Payne only and did not attempt to pursue the liquidator.

The trial took place over 5 days in November 2021 by a video link. Recorder Khangure KC delivered his judgment orally. The subsequent transcript of his judgment ran to 154 paragraphs.

The trial Judge evaluated the evidence and concluded that, whilst there was a protocol or a procedure in place at Dolan Park Hospital for the surgeon to see the patient after 30 days following this type of surgery, this was not an absolute rule as the patient would be expected to and, in Mrs Chilton’s case, was in fact reviewed by experienced nurses. The Judge accepted Mr Payne’s evidence that he would have been available to see Mrs Chilton on 16, 17 and 18 July 2014 and that he would have been notified by the nurses if there was a problem that required an early review. Mrs Chilton argued that Mr Payne owed some form of non-delegable duty in respect of the nurses’ actions on the basis that he was responsible for the leadership of his team. The trial Judge considered that such leadership by a self-employed surgeon was limited to ensuring that the nurses were competent in their medical roles and that they would ensure that he is informed if there are any clinical complications.  The trial Judge found that Mr Payne discharged that duty. Mrs Chilton also argued that there was a duty on the surgeon to write into the operation note the date when he wanted to review her. The trial Judge found no such duty arose in the context of the protocols and procedure in place at Dolan Park Hospital. Finally, Mrs Chilton argued that there was a duty on Mr Payne to see her within 30 days of the procedure. The trial Judge dismissed this argument in the context of the protocols and procedure in place and on the basis that, without more, the duty to review cannot be interpreted as a duty to review on a particular day.

Having dismissed Mrs Chilton’s case on breach of duty, the Judge went on to consider obiter her case on causation. He found that Mrs Chilton’s mother called Dolan Park Hospital on 16 July 2014 and accepted an appointment for her daughter for 31 July 2014. This was done for reasons of convenience as Mrs Chilton’s parents – who normally drove her to Dolan Park Hospital – were away at the Open Golf Championship. The trial Judge also found that the appointment was booked because at that time Mrs Chilton’s mother did not have sufficient concern about her daughter’s condition to insist on an earlier review. The trial Judge considered that this finding was fatal to Mrs Chilton’s case on causation irrespective of his findings of breach of duty.

Mrs Chilton’s appeal 

Mrs Chilton appealed with permission from Mr Justice Ritchie. The appeal was heard by Mr Justice Henshaw on 15 December 2023 who handed down his judgment dismissing the appeal on 1 March 2024.

The appeal concerned the scope of duty of care of the operating surgeon to arrange a review appointment in a setup of a private hospital. However, even if Mrs Chilton were successful in persuading the Appeal Court that the surgeon owed a duty either to write the date for surgical review into the operation note or to arrange the appointment for a specific date, she still had to persuade the Court that she would have attended this appointment in circumstances where the trial Judge found that she would not have done so. Mrs Chilton also appealed on the basis of what she contended was a serious procedural irregularity by the trial Judge in allowing Mr Payne’s expert, Mr Fitzgerald, to put before the Court a witness statement after the conclusion of the evidence.

  • Failure to write review requirement into the operation note

Mr Justice Ritchie did not give permission to appeal on this ground, and Mrs Chilton renewed her application in relation to it before Mr Justice Henshaw. Her appeal relied on a narrow interpretation of something that the trial Judge said in his judgment. Mr Justice Henshaw had no difficulty rejecting this ground on the basis that it advanced an argument that ignored the context in which Mr Payne was making his decisions about the relevant matters. On Mr Justice Henshaw’s analysis at [59], “Although certain surgeons might consider that something should be written on the operation note, that was, the judge concluded, not critical if there were other documents making it clear to the patient and the staff when the surgeon was going to see her or him”. This conclusion was not undermined by the fact that Mr Fitzgerald (Mr Payne’s expert) was critical of the date of the surgery not being stipulated in the operation note. The difficulty for Mrs Chilton was that Mr Fitzgerald did not accept that his criticism equated to a breach of duty because of the context in which Mr Payne operated.  Mr Justice Henshaw reviewed the evidence at [61]-[70] and concluded that the trial Judge was correct in reaching the view that the Bolam test could not be satisfied simply because a reasonable body of clinical opinion would have acted differently; to succeed Mrs Chilton needed to establish that no responsible body of opinion would have failed to write the date into the operation note. Mrs Chilton could not establish this in the circumstances of “the arrangements in place at The Hospital Group and Mr Payne’s role in them”.  It was also difficult to envisage such precise standard where “there was no hard and fast rule as to when the patient should next be seen personally by the surgeon, there is no specific length of time that the surgeon ought reasonably to specify in a note made immediately after the operation”.  Mr Justice Henshaw concluded that the trial Judge was correct in concluding there was no duty to write the date into the operation note.

  • Failure to see the patient within 30 days

Mrs Chilton argued that it was wrong for the trial Judge to dilute the duty of the surgeon to see the patient simply because the hospital owed her a concurrent duty of care. Mr Justice Henshaw concluded that this argument was a misstatement of the trial Judge’s findings. The trial Judge “found that the manner in which Mr Payne could discharge his duties had to be assessed in the context of the systems that were, as a matter of fact, in place at the hospital. In the context of a specialised private clinic, with the protocols in place which the judge had described, Mr Payne was entitled to fulfil his duties (including leadership duties) by instructing and monitoring the nurses in the way the judge found he did, and by ensuring he was satisfied that the system was working and could be expected to result in the patient being referred to him whenever appropriate”. The other arguments advanced in support of this grounds of appeal relied on Mrs Chilton’s interpretation of various aspects of the evidence heard by the trial Judge, all of which were dismissed by Mr Justice Henshaw: see [81]-[99].

  • Procedural unfairness

Mrs Chilton argued that the trial Judge’s findings were tainted by a procedural unfairness due to a witness statement from Mr Fitzgerald being admitted into evidence without an opportunity to cross-examine him on its contents. Mr Fitzgerald in his written evidence argued that it was appropriate for the surgeon to review the patient at any time up to 3 months following the procedure. In cross-examination, it was put to him that the index surgery was a fleur-de-lys procedure with a vertical and a horizontal scar. Mr Fitzgerald said that this was not his understanding, but accepted that, if this was the case, then the surgeon was obliged to review within 4 weeks. In re-examination, he was given an opportunity to review the operation note and remind himself that the index procedure only had a horizontal scar. He changed his evidence back to 3 months. After the conclusion of the evidence and overnight, he realised that he needed to clarify to the Court his true professional opinion and therefore put before the Court a witness statement signed with a statement of truth, confirming that his evidence in re-examination represented his true opinion. Mr Justice Henshaw quoted the witness statement in question in full at [102] and then held:

  1. In principle I see no difficulty with a judge allowing a witness who has given evidence to correct or clarify something he/she has said, if on private reflection the witness feels correction/clarification that to be necessary in order to avoid the judge being left with an incorrect account of events or (in the case of an expert) of the expert’s opinion. On the other hand, if in substance the witness is being allowed to give additional evidence in chief, then fairness would generally require an opportunity to be given for the opposing party to cross-examine.
  2. In the present case, however, I do not consider any material irregularity to have occurred, nor one which have undermined the judge’s findings on the issues; nor (in any event) a serious or grave irregularity amounting to a denial of justice. As the judge said in Judgment § 129, after outlining the gist of the further statement, “he had also told me that in re-examination”, adding in § 130 that he (the judge) had come to the conclusion that Mr Fitzgerald’s evidence was consistent with “the process and procedure that was adopted by The Hospital Group as invoked by Mr Payne in any event”. (I note in passing that the quotation of Judgment § 129 in Ms Chilton’s skeleton argument notably omitted that sentence, without the use of omission marks.) Counsel for Ms Chilton was unable to point to any aspect of the new witness statement that added any of substance to what Mr Fitzgerald had already said in his report or in his oral evidence. Further (as to Ms Chilton’s complaint about minimising), the way in which the witness statement described the seriousness of the operation was fully in line with Mr Fitzgerald’s evidence in re-examination (after being reminded of the operation note and photographs) quoted in § 92 above. The fact that the statement appears to have been written up by the legal team is not a reason for doubting that it reflected Mr Fitzgerald’s views, particularly in circumstances where it did no more than to repeat what he himself had said in re-examination.

Key practical lessons from the judgment:

  • The issue of duty and breach can only be determined in the full context in which the clinician operated. It cannot be determined in the abstract.
  • Breach of duty cannot be established unless there is convincing evidence that no responsible body of clinical opinion would have acted in the way in which the treating clinician did.
  • If an expert feels that there is a risk of their evidence being misinterpreted by the Court, e.g. where their evidence may have changed in cross-examination or re-examination, it is possible for the expert to put before the Court a witness statement confirming their true opinion. As long as no new evidence is being introduced, such step may not be procedurally unfair and/or lay grounds for a successful appeal.



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