Dave Berry | Partner

If At First You Don’t Succeed… Don’t Try Again.

In Hamilton v. Lanarkshire Health Board [2020] CSOH 24, quantum had been agreed between parties at £195,000. Liability and causation remained in dispute.

Mr Hamilton swallowed a dental plate whilst playing with his grandchild during the morning of 26 January of 2013. He was thereafter admitted to Wishaw General Hospital (now University Hospital) in order to have the plate removed.

The Pursuer underwent an initial endoscopy under the care of Miss MacDonald (staff grade surgeon) to remove the plate which had lodged at the oesophago-gastric junction. This procedure was unsuccessful. She moved the plate into the Pursuer’s stomach to re-assess the situation at a later point.

A second endoscopy (this time under GA) was attempted the following morning. Miss MacDonald was again unsuccessful in removing the plate. She considered she could not remove the plate safely and called for Mr Downey. Mr Downey was the consult in charge. 

Mr Downey was a consultant general surgeon with a sub-specialism in colorectal work. His experience of any surgery involving the oesophagus was extremely limited. In evidence he considered he had perhaps endoscopically removed five objects through the oesophagus in his entire career. He had never removed a dental plate in such a manner. He wrongly assumed that the principles of the procedure were the same as before, and that his skills were transferrable. It was notable that the dental plate was a particularly sharp foreign body.

Mr Downey made two attempts to remove the plate utilising a roth net. He managed to remove the plate on the second attempt. Whilst making both attempts Miss MacDonald was not present and was attempting to speak to a Mr Younes who was experienced in upper GI endoscopy for advice.

Upon her return to theatre Miss MacDonald passed the endoscope back down through the oesophagus and noticed a mucosal tear above the OG junction. A stent was inserted to cover the damaged area. 

Following the procedure Mr Hamilton became gravely ill. He was found to have a perforation of the oesophagus and suffered a number of life threatening complications.  CT scanning showed he had developed mediastinal emphysema, right pneumothorax and left pleural effusion. He developed respiratory failure and reduced renal function. He had associated sepsis and pyrexia. He required multiple further operations including the insertion of a feeding jeujonostomy, chest cavity wash out, insertion of tracheostomy and a thoracotomy to drain his left chest infection.

The Pursuer’s injuries were caused by Mr Downey’s attempts to remove the plate via the oesophagus. The alternative to this procedure was to convert the operation to a laparotomy. Mr Hamilton had been consented to this procedure prior to being placed under GA. In contrast to his lack of experience in removing objects via the oesophagus Mr Downey was extremely experienced in performing a laparotomy and would undertake such surgery weekly. Converting to a laparotomy was an easy way out for Mr Downey and one he neglected to take.

Whilst an experienced upper GI surgeon may have been able to remove the plate endoscopically via the oesophagus, Mr Downey with his lack of experience was in a very different situation. He ignored the “flashing red light” that illuminated during his first attempt to remove the plate – namely that he couldn’t do it without the plate snagging. Any ordinarily competent surgeon, acting with reasonable care would have abandoned attempts to endoscopically remove the plate via the oesophagus at this point and converted to laparotomy.

In short Mr Downey was found to be negligent. He took an easily avoidable risk (perforation of the oesophagus) that all general surgeons recognise to be a catastrophe to be avoided. His actions were such that no ordinarily competent general surgeon, acting with ordinary care would have attempted the second endoscopic removal of the plate.

This case is a useful reminder of the dangers of general surgeons (who are extremely experienced in particular areas) attempting procedures with which they unfamiliar and persisting with a risky course of action when a far safer (albeit more time consuming) alternative is immediately available.

The case also highlights the necessity in selecting the most suitable expert. The Pursuer’s expert (a Mr Pye) in this case was the “best” comparator to Mr Downey being a consultant general surgeon, with primary experience in colorectal work and consequently his evidence was preferred. 

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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