Recording allowed objective assessment

A case concerning bowel perforation was successfully defended at trial

In 2009 a consultant gynaecologist, an MDU member, undertook laparoscopic surgery for deep infiltrating endometriosis in a young woman. He video-recorded the 25-minute procedure, which was a block dissection of the utero-sacral ligaments using monopolar diathermy as the operative modality. The surgery appeared to go well.

The patient was discharged the following day but five days later became seriously unwell and returned. She was diagnosed with faecal peritonitis and rectal perforation. A defunctioning colostomy and repair of the perforation led to a good recovery after a period of convalescence.

The patient sued, alleging negligent perforation of the rectum and initially claimed £140,000 damages. She alleged that the rectal probe had been used negligently when identifying the rectum and that the bowel had been perforated through direct diathermy contact. The case proceeded to trial.

On viewing the video, the claimant's expert, a retired consultant gynaecologist with a special interest in diabetes in pregnancy, believed he could identify two occasions when the perforation could have occurred. The defendant's expert, an acknowledged and practising expert in this specialist field, disputed this and considered the damage was probably caused by unpredictable heat spread from the diathermy, not by direct contact. Thermal heat spread is a recognised risk of diathermy. This view was accepted by the claimant's expert.

The video was played to the court, and there was a great deal of discussion about technique with the rectal probe as well as the use of monopolar diathermy and heat spread.

The judge found that:

  • the claimant had not established, on a balance of probabilities, that there had been a direct application of the diathermy instrument to the rectal wall
  • the damage had inadvertently been caused by heat spread from the use of the instrument and, although the defendant might have expected to see the damage, this is not always visible
  • there had been many uncertainties and very different opinions but the evidence of the defendant's expert was to be preferred, based on his particular experience and expertise
  • the claimant had suffered inadvertent heat damage, which was a recognised complication of the procedure.

No blame was attributed to the surgeon. While expressing his sympathy for the claimant for the complication she had suffered, he felt that having a complete recording of the procedure allowed for an objective, rather than an opinion-based, assessment.

Hilary Halfpenny
Senior claims handler

This page was correct at publication on 10/01/2014. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.