Ternent v Ashford & St Peter’s Hospital NHS Trust
[2010] EWHC 593 (QB)
High Court, Queen’s Bench Division
Mr Justice Tugendhat
Judgment delivered: 24 March 2010
Background
The claimant underwent an emergency Caesarean section in October 2005. Four days later she suffered complete dehiscence of the rectus sheath, resulting in re-opening of the wound and herniation of bowel, requiring emergency re-operation.
The claimant alleged that the original surgeon had negligently sutured the rectus sheath during the Caesarean section, causing wound breakdown. The Trust denied negligence and argued that wound dehiscence, although rare, can occur even where surgery has been performed competently.
The preliminary issue before the court was whether the wound dehiscence was caused by negligent suturing.
Decision
The claim failed. The court held that negligence had not been proven on the balance of probabilities.
Key Legal Principles
1. The burden of proof remains with the claimant
The court reaffirmed that the claimant bears the burden of proving negligence throughout the case.
The defendant was not required to establish an alternative non-negligent cause of the wound failure. If the evidence left the cause uncertain, the claimant’s case failed.
2. Bolam remains the applicable standard
The court applied the familiar Bolam principle:
A medical professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of skilled medical opinion.
The issue was therefore whether the claimant had established that the surgeon’s suturing technique fell below the standard expected of a reasonably competent obstetric surgeon.
3. Wound breakdown does not prove negligence
Although wound dehiscence after a lower transverse Caesarean incision was accepted to be a very rare complication, the experts agreed it can occur without negligence.
Accordingly, the court rejected any suggestion that negligence could simply be inferred from the occurrence of the complication itself.
4. Res ipsa loquitur was not applicable
The claimant expressly did not rely upon res ipsa loquitur.
The court nevertheless emphasised that the fact of wound failure alone was insufficient to establish negligent surgical technique because competent surgery can, on rare occasions, still be followed by wound dehiscence.
5. Expert opinion must rest on secure factual foundations
The claimant’s expert advanced a theory that the knot tying had been defective, causing the suture to unravel.
The court found that the factual assumptions underpinning that theory were not established. In particular:
- there was no reliable evidence that the knot had come undone rather than the suture failing by some other mechanism.
- conclusions drawn from the absence of visible suture material at re-operation were unsupported.
- criticisms based on the speed of surgery, surgeon positioning, incision length and working arrangements were speculative.
- engineering evidence concerning suture strength did not establish what had occurred within the patient’s body.
The court therefore rejected the proposed mechanism of negligence.
6. The court will not infer negligence from speculation
The claimant sought to rely on various indirect factors, including:
- the rarity of wound dehiscence.
- the size of the incision.
- observations that the surgeon appeared to operate quickly.
- suggestions regarding the surgeon’s employment arrangements and workload.
The court found none of these matters justified an inference of negligent practice. Speculation could not replace proof.
7. Rare adverse outcomes do not justify retrospective blame
Mr Justice Tugendhat stressed that emergency surgery inevitably carries risks and that courts should be cautious before concluding that a rare complication was probably caused by negligence.
An adverse outcome is not evidence that professional standards were breached.
Outcome
The court concluded that it was impossible on the evidence to determine the cause of the wound breakdown. Since negligence had not been proved on the balance of probabilities, the claimant failed to discharge the burden of proof. Judgment was therefore entered for the defendant on the issue of liability.
Significance
This case is frequently cited as an illustration of:
- the continuing importance of the burden of proof in medical negligence litigation.
- the limits of retrospective expert reconstruction of surgical events.
- the distinction between a recognised complication and negligent treatment.
- the principle that courts should not infer negligence solely because a rare and serious complication occurred.