Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 42
Determining Reliability in Clinical
Negligence Litigation – Evidential
and Expert Considerations
by Elizabeth Broadley, Partner & Elinor Colman, Associate at Clyde & Co LLP
trial, C discontinued all of these allegations and
the focus of the case remained only on the post
operative care. This left the following issues to be
determined at trial:
Clyde & Co successfully represented a Consultant
Upper GI and Bariatric Surgeon, an MDDUS
member, at a trial which concerned a decision
to undertake balloon dilatation following sleeve
gastrectomy surgery.
i.
This decision highlights the importance of the
reliability of both factual and expert witnesses
in clinical negligence proceedings. Clyde & Co
instructed Anna Hughes of 2 Temple Gardens on
this case.
ii. Whether there had been a breach of duty in
proceeding with the balloon dilatation;
iii. Whether the breach(es) of duty caused injury or
damage to C.
Introduction
The Claimant (C) met with the Defendant (D) in
2019 to explore the possibility of weight loss surgery.
C elected to undergo the procedure after she had
been reviewed by D and his specialist bariatric team,
including a dietitian, psychotherapist and bariatric
nurse, who found C to be a suitable candidate.
Surgery took place in September 2019.
It was accepted by D in advance of the trial that
should breach of duty be established in respect of
the performance of the balloon dilatation, then
causation would be established in full.
A 3 day trial took place before HHJ Simon at the
Royal Courts of Justice beginning in June 2025.
At a review four weeks after surgery, C complained
of even sloppy textured food getting stuck in her
throat. D performed a barium swallow, which
suggested a mild delay or hold up of contrast at the
gastro oesophageal junction (GOJ). The Claimant
continued to struggle with eating and four weeks
later D undertook a diagnostic gastroscopy where
he concluded that a possible narrowing may be
causing her symptoms. Accordingly, the Claimant
was consented for a balloon dilatation, which D
undertook. Unfortunately, C su昀昀ered a recognised
complication of this procedure, a leak of the gastric
sleeve, requiring conversion of the sleeve to a gastric
bypass. At the time of trial, C was sadly still su昀昀ering
from ongoing symptoms of vomiting with poor oral
intake, and malnutrition.
Legal arguments
In support of the allegations of breach of duty,
C argued that D and the bariatric nurse failed to
document C’s reports of di昀케culties with vomiting
and food progression. D and the bariatric nurse
gave evidence that such important information
would have been recorded had it been reported by
C, and indeed when these issues were reported, the
bariatric nurse immediately requested D’s input,
which led to further investigations.
It was also argued by C that as there was no good
evidence of stricture on the barium swallow, further
conservative treatment measures should have been
attempted before embarking on the dilatation. This
was supported by the evidence of the Claimant’s
expert Upper GI/Bariatric Surgeon, who was
strongly of the view that balloon dilatation was
only to be conducted in the presence of con昀椀rmed
stricture. However, as the trial progressed, this
expert was unable to provide concrete de昀椀nitions
At the time of issue of proceedings, D was extensively
criticised for failing to appropriately consent C
for surgery, and for the performance of the sleeve
gastrectomy itself. These formed over half of the
allegations pleaded. However, just weeks before
EXPERT WITNESS JOURNAL
Whether there had been a breach of duty by
D in failing to provide C with reasonable postoperative care following the sleeve gastrectomy;
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DECEMBER/JANUARY 2025-2026
