(FIRST) A.B. AGAINST DR. K PALANIMURGAN, DR A.W. RIGG AND DR. S. INDRIZ,
(SECOND) DUMFRIES AND GALLOWAY NHS BOARD
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 26
A163/11
OPINION OF LORD DOHERTY
In the cause
A B
Pursuer;
against
(FIRST) DR K PALANIMURUGAN DR A W RIGG and DR S INDRIZ; (SECOND) DUMFRIES AND GALLOWAY NHS BOARD
Defender:
Pursuer: Hofford QC, Smart; Digby Brown SSC
First Defender: Bowie QC, Burnet; MDDUS
Second Defender: Kinroy QC, Heaney; NHS Central Legal Office
17 March 2015
Introduction
[1] This action for medical negligence arises as a result of administration of an enema to the pursuer on 20 June 2008. The pursuer avers that her GP, Dr Palanimurugan (one of the partners in the first defenders) and a community nurse, Nurse Bryson (employed by the second defenders) were negligent in a number of respects. She avers that Nurse Bryson inserted the nozzle of the enema into an open surgical wound rather than into her anus; and that the administration of the enema into the wound caused a fistula between her rectum and her vagina.
[2] A proof before answer on liability and quantum was set down for 12 days commencing on 13 May 2014. On the first day of the proof it was evident that the diet allocated would be inadequate for both the merits and quantum to be disposed of. Parties agreed that the proof should be restricted to liability and causation, and an interlocutor so restricting the proof was pronounced. On the tenth day of the diet it was adjourned to allow an expert witness, Professor Paul Horgan, to be recalled. His further evidence was heard on 2 December 2014. Closing submissions followed and I made avizandum on 4 December 2014.
Background
[3] The pursuer was aged 52 at the date of the proof. She gave birth to her first child in 1986 at Cumberland Infirmary, Carlisle. She underwent a forceps-aided delivery and had an episiotomy which required subsequent repair. Thereafter she developed anal sphincter disruption which over time resulted in chronic faecal incontinence. In October 2001 she had a tension free vaginal tape procedure to address symptoms of urinary incontinence. In July 2006 she had a vaginal hysterectomy, a pelvic floor repair, and associated repair of the perineal body. In late 2007/early 2008 she was examined at Cumberland Infirmary. She was found to have a palpable external anal sphincter defect between the nine and one o’clock positions. Mr Palmer, the consultant general and colorectal surgeon in charge of her case, recommended an anterior anal sphincter repair. On 12 June 2008 Mr Palmer carried out that operation. At the same time he performed a levatoroplasty. The surgery involved refashioning of the tissues between the vagina and the rectum to improve the muscles which relax to let the bowel open and faeces to be passed and which tighten to close the anal passage. Mr Palmer left a small opening at the centre of the surgical wound in the perineum to allow drainage of the sub-cutaneous tissues. Following the operation the pursuer remained an in-patient until her discharge home on 16 June 2008.
The pleadings
[4] The pursuer avers:
“Cond. 2 … Following discharge from hospital, the pursuer developed constipation and pain on attempting to pass stools. On 19 June 2008, at around 02.00hrs the pursuer contacted NHS 24 out of hour’s service complaining of constipation and pain. She was advised to add senna, a mild laxative, to her existing prescribed laxative, and to contact her own GP…On the morning of 19 June the pursuer contacted the first defenders’ practice due to continuing pain and inability to move her bowels. A district nurse, Isabel Gunning, attended the pursuer. Nurse Gunning administered a Microlax enema… Thereafter, Nurse Gunning arranged for Dr Palanimurugan to visit the pursuer…. Dr Palanimurugan examined the pursuer and recorded that the suture line around the anus was painful and swollen. No rectal examination was carried out. Abdominal examination did not disclose any sign of a palpable mass suggestive of faecal impaction. The pursuer was advised to continue laxative treatment but that if her condition worsened she was to contact the surgery. On 20 June 2008, the pursuer contacted the first defenders’ surgery and spoke to another district nurse, Sylvia Swallow. The pursuer advised Nurse Swallow that she remained in pain and was unable to move her bowels. Nurse Swallow discussed the pursuer’s condition with all three of the first defenders at a clinical team meeting on 20 June 2008. The first defenders and Nurse Swallow decided that the pursuer should be given a Fletchers’ phosphate enema, at half normal volume. As the doctor who had last seen the pursuer, Dr Palanimurugan was in the position to make the final decision on her management and had responsibility therefor. District Nurse Bryson … attended the pursuer on 20 June. Nurse Bryson administered the Fletchers’ enema in two stages. During the procedure the enema tubing was directed into the open surgical wound rather than the rectum. The administration of the enema resulted in a traumatic disruption of the suture line of the previous surgical repair, causing the wound to extend through to the vagina (a recto-vaginal fistula)… The pursuer became aware of severe pain when Nurse Bryson was administering the second half of the enema. She was unable to catch her breath or cry out. She was utterly shocked by the extent of the pain. Nurse Bryson left immediately after giving the pursuer the enema and did not wait for any result from the enema …”
[5] The case pled against the first defenders is that it was Dr Palanimurugan’s duty not to authorise the Fletchers’ enema on 20 June without first reviewing the pursuer’s condition, reaching a diagnosis of faecal impaction, and assessing the risk of trauma from an enema; that it was his duty not to authorise the enema without explaining the risks of the procedure to her and obtaining her informed consent to it; that it was his duty to seek advice from the surgical team on 20 June before authorising an enema; and that if he was aware that enema fluid had appeared at the suture line on 19 June he ought to have referred the pursuer back to hospital immediately. The pursuer avers that Dr Palanimurugan breached each of these duties. The first defenders admit that Dr Palanimurugan was negligent in authorising the enema without first taking action to clarify the appropriateness of its use such as by contacting the surgical team. They aver that this breach of duty was not causative of loss; and that had Dr Palanimurugan contacted the surgical team administration of an enema would have been likely to have been recommended, either in the community or at the hospital. They aver that he was not informed of the appearance of Microlax enema fluid on the suture line on 19 June.
[6] Of the cases pled against the second defenders the only ones ultimately insisted upon were that it was Nurse Bryson’s duty to carry out her own clinical assessment of the pursuer and of the appropriateness of the enema, and to question its appropriateness with Dr Palanimurugan; and that it was her duty not to insert the enema into the surgical wound. The second defenders admit that it was Nurse Bryson’s duty to take reasonable care not to deliver the enema into the wound but they deny that in the circumstances it was her duty to carry out her own clinical assessment of the appropriateness of the enema.
[7] In cond. 5 the pursuer avers:
“As a result of the defenders’ failures in duty the pursuer sustained loss, injury and damage. As a result of the administration of the enema, and the direction of at least part of the enema into the open surgical would, a fistula formed between the surgical wound at the rectum and the vaginal wall. The pursuer was in severe pain following the administration of the enema. She began to pass stool through her rectum and vagina…There is no evidence of any recto-vaginal fistula being present prior to the enema being administered. The pursuer moved her bowels normally while in hospital. The enema administration resulted in a breach between rectum and vagina…”
The evidence
The pursuer’s case
The pursuer
[8] The pursuer indicated that after her anal sphincter operation, when she was in hospital between 12 and 16 June 2008, “I opened my bowels four or five times”. She said that at home on Monday 16 June and Tuesday 17 June she was tired and uncomfortable. She opened her bowels at home on Monday 16 June: but that on Wednesday 18 June she was in considerable pain and was getting worse because she could not open her bowels. Around midnight her husband had phoned the NHS after hours service for advice. The next morning she had spoken by telephone to a nurse at the first defenders’ surgery. Nurse Gunning had visited her at home. She had administered half of a Microlax enema to her. Nurse Gunning had said she would get Dr Palanimurugan to come and see her. He had come later that afternoon. He had visually examined her surgical wound and had felt her stomach. He had advised her to continue taking laxatives, painkillers and an antibiotic. On Thursday and Friday she was unable to open her bowels. She passed some brown faecal fluid from her anus. The pain continued to get worse. On Friday 20 June she telephoned the surgery. Nurse Bryson came to see her that afternoon. She had said that she was going to give her a half volume Fletchers’ enema. She had not advised her of any risks which might be involved. If she had been told there was a risk she would not have agreed to have the enema. She had lain down on her bed on her left side. Nurse Bryson had said to let her know if she had any pain when she was administering the enema. The enema nozzle used looked about the same size as that on the enema bottle 6/44 of process. Nurse Bryson “gave me an enema into the back passage and took it out”. She had been aware of it going in and coming out. When it was taken out she had looked over her shoulder towards Nurse Bryson and asked “Is that it?” Nurse Bryson had been holding the enema up and was looking at it. She had said “No. I’m only giving you half volume - I need to check how much I’m giving you”. Nurse Bryson had re-inserted the enema. At the time the pursuer had not known where it had been inserted, but she knew because of the pain that it was not her back passage. It was an internal not an external pain: “It was a tear I felt internally”. The pain was:
“Off the scale. It was way beyond 10. I froze. I felt I couldn’t breathe, I couldn’t speak. I didn’t scream out. I was rigid. I was helpless.”
She thought it would have been obvious to Nurse Bryson that she was in discomfort. Nurse Bryson had said “See how you get on with that. If you have no joy contact the surgery on Monday.” She had left almost immediately - within 30 seconds. After she had left the pursuer had known something was wrong. She had got off the bed and taken five or six minutes to struggle to the bathroom. She was in excruciating pain - she “would have given up her husband and children” for the pain to go away. When she was in the bathroom she noticed faecal fluid with blood in it and a piece of stool. The faecal fluid and blood was running down the inside of her legs. The stool was on the bathroom floor. It was the size of her thumb. The fluid and stool had come out of her vagina. She saw faecal fluid and blood come out of her vagina when she sat on the toilet. She had called her daughter who had phoned her husband. When her husband arrived home he had tried to calm her down and clean her up. He had called the surgery. She did not recall what he had said on the phone. Eventually she had been taken to hospital by ambulance. She had a phobia of ambulances so it was quite likely she had not explained fully to the ambulance personnel what had happened. When she was admitted to hospital she told the doctor who saw her about the pain during the enema and the subsequent blood, faecal fluid and stool from her vagina. She repeated the same account to other medical staff later. The next day she saw Mr Palmer and told him. She found it difficult to understand why there was no note of it in the medical records at these times. On 26 June, after she had a temporary colostomy, she asked Mr Palmer if he thought the enema was the cause of her fistula. He had said it was the sole cause.
The pursuer’s husband
[9] Mr B stated that after her operation on 12 June the pursuer was sore and uncomfortable and wanted to come home. She was kept in hospital for her to pass a motion to show that there was no blockage. While in hospital she had gone to the toilet several times and had passed motions. He thought that on Monday 16 June she had opened her bowels, and the next day she had passed a small stool about the size of a thumb. After that she had been constipated, just passing faecal fluid. She was uncomfortable and in pain. She could not sleep. At about 2.00am on Thursday 19 June he had called NHS 24. He had related his wife’s symptoms. He had not said she had not had a bowel motion for a week. The pursuer had a bad night. A nurse had come the next day. She gave the pursuer a Microlax enema. It had not improved matters, and things continued to be bad overnight. The pursuer was still in pain and was becoming more agitated. At 3.00pm that day he had got a phone call at work asking him to come home quickly. When he arrived his wife had brown and red fluid down the front of her nightdress. It appeared to be coming from the front of her nightdress below the waist. He had held her hand while she sat on the toilet. She had said “There is poo coming out of my front passage.” There was brown fluid over her legs and pubic regions. He had seen a piece of stool about the size of his thumbnail coming out of her vagina. He had asked her what had happened. She had said: “Nurse gave me an enema. It hurt. When she left I couldn’t hold it in anymore.” She was in great pain. He had cleaned her up and phoned the surgery. He could not recall if he had spoken to a district nurse. If he had it was unlikely he had said only that the pursuer had passed a small piece of faeces about 5cm by 1cm. When Dr Palanimurugan had phoned back Mr B had told him that there was blood and faecal matter “coming out of her”. He could not remember if he had said where it came from.
Nurse Sylvia Swallow
[10] Nurse Swallow was aged 61 at the proof. She was the community staff nurse based at the first defenders’ surgery. By Friday 20 June Nurse Swallow had been made aware that the pursuer had had a Microlax enema the previous day, but she had been unaware of any issue having arisen in respect of it. At about 11.45 am the pursuer had telephoned. She said her bowels had not moved. She was constipated and in discomfort. Nurse Swallow had said maybe she needed another enema. There was a practice meeting at about 1.00pm. She raised the issue of the pursuer’s treatment at the meeting. She suggested a half volume Fletchers’ enema be tried. After some discussion this was agreed to by the first defenders. If she had known that on administration of the Microlax enema fluid had appeared at the suture line she would have wanted to discuss that at the meeting. There had been no mention of it. Nurse Gunning had not been at the meeting. Nurse Swallow had intended to administer the Fletchers’ enema but she required to deal with another patient. She asked Nurse Bryson to do it. She agreed that when Nurse Bryson saw the pursuer she would expect her to assess whether an enema was appropriate. Nurse Bryson was a good nurse. It seemed “very, very unlikely” to her that Nurse Bryson would have mistaken the open wound for the pursuer’s anus.
Nurse Nancy Bryson
[11] Nurse Bryson was aged 69 at the proof. She had been employed by the second defenders for 32 years - 14 years as a nurse in a medical ward, 10 years as an intensive care nurse, and (latterly) eight years as a community nurse. In 2008 she was a community nurse and she worked from the first defenders’ surgery one or two days each week. She was at the practice meeting on 20 June 2008. She recalled there was some discussion about the pursuer who had phoned in because she was constipated. Nurse Bryson had not participated in the discussion, but she recalled a member of staff suggested a phosphate enema and there was discussion with the doctors about that. Later in the day Nurse Swallow had asked her to give the pursuer a half volume enema. Nurse Swallow said that was what the GP said was to be given. She might have been told by Nurse Swallow that the pursuer had had recent bowel surgery - she was unsure. She had a lot of experience giving enemas. She had been unaware that the pursuer had had a Microlax enema the previous day, or that a doctor had been to see her then. She did not see the pursuer’s medical records or nursing notes before attending. When she saw the pursuer her impression was that she was constipated and that she needed assistance opening her bowels. There had been a conversation about the constipation. She could not recall if she discussed any risks involved in having an enema. She did not digitally examine the pursuer’s rectum before the enema. She had not been asked by Nurse Swallow to do that and she would not normally do that. It was at the back of her mind that the pursuer had had bowel surgery and she considered digital examination would be too intrusive and might be painful. Her understanding was that the doctor was aware of the pursuer’s circumstances and had considered that the enema was the appropriate treatment. In the circumstances there was no good reason not to comply with the doctor’s instruction. She recognised the Patient Group Direction (“the PGD”) (6/38 of process). It was a protocol which gave guidance for nurses to assess a patient’s needs without going back to a doctor to get a prescription. However, the checklist on page 3 had not been in place in June 2008. The PGD wasn’t the exercise she was engaged in. The doctor had authorised an enema.
[12] The pursuer lay down on her bed on her left side. Nurse Bryson had explained to her what she was about to do. She had lubricated the nozzle of the enema with lubricant jelly. The enema was like 6/44 but was a different make. It had a similar nozzle - about one and a half to one and three-quarters inches in length. The nozzle was flexible. She could see the pursuer’s anus. She was kneeling or leaning. Her face was about a foot from the anus. She inserted about an inch of the nozzle into the pursuer’s anus. She did not insert it the whole way. When she thought she would have given about half a dose she had retracted it downwards to see what was left in the bottle. While she did this the tip of the nozzle was just outside the anus. Not enough had been given so she re-inserted the nozzle back where it had come from and dispensed a little bit more of the enema fluid. She was certain the nozzle had been re-inserted in the anus. The pursuer did not complain of any pain. There had been no sign of her being in pain. She had not drawn away, tensed up, or reacted in any way. Had the pursuer been in pain she thought she would have recognised it. After the enema she told the pursuer to remain lying down for several minutes to let the enema take effect. She was sure the pursuer was still talking to her after the enema. She did not detect any silences. She did not leave any sooner than after any other enema. She had not been aware of the existence of the surgical wound and she had not seen it. That could have been because of the pursuer’s position, or her body size, or the folds of her skin. Later that day the pursuer’s husband had telephoned the surgery. She had taken the call. He said the pursuer was in pain and that she had passed some faeces which had been 1cm by 5cm. She had thought it unusual that he had been so precise about the dimensions. She did not recollect anything being said about blood or faeces coming from the pursuer’s vagina.
Dr Kaliyaperumal Palanimurugan
[13] Dr Palanimurugan was aged 53 at the proof. He studied medicine at Madras University and qualified as a doctor in 1985. He held various hospital and university posts in Madras between 1985 and 1999. Between 1999 and 2001 he was a house officer at a hospital in Sutton Coldfield and then a senior house officer at Inverclyde Hospital. Between 2001 and 2003 he worked at the City Hospital, Birmingham. After that he worked on the GP training scheme at Cumberland Infirmary, following which he worked as an out of hours doctor at Borders General Hospital. In 2007 he became a partner in the first defenders.
[14] Dr Palanimurugan’s recollection was that on Wednesday 18 June there was an informal discussion about the pursuer’s case when the doctors and nurses met in the coffee room after the morning surgery. It had not been a practice meeting. He thought that mention had been made of the pursuer struggling to pass stool and that an enema was to be tried. On 19 June he made a house call to the pursuer. He could not recall who had asked him to go. He had read the hospital discharge records and had had some discussions with the nurses and doctors. He knew she was constipated and in pain. He was unaware of the NHS 24 call at that stage. He was unsure if he had been aware that Nurse Gunning had visited the pursuer earlier in the day. He certainly had not been informed that when Nurse Gunning administered a Microlax that fluid had appeared at the suture line nor had he seen any nursing note to that effect. Had he been aware of that he would have sent the pursuer to hospital and he would have made an appropriate entry in her medical records.
[15] When Dr Palanimurugan attended he found the pursuer to be constipated and in a lot of pain. She informed him she was passing only liquid from her back passage. She complained of pain in the region of her perineum. She did not complain of pain in her abdomen. Dr Palanimurugan gently felt her abdomen. It was soft. He did not feel any mass. Her bowel sounds through his stethoscope sounded normal. When he examined the pursuer she lay on her back with her legs apart. He had no difficulty seeing the wound. Her perineum and the suture line appeared very swollen. There was “a minimal, small gap” in the wound which was gaping (the skin was pushing open) with dark sutures on either side of it. Because of the pain the pursuer was in Dr Palanimurugan decided it was not possible to carry out a rectal examination. He prescribed laxatives and pain relief.
[16] On 20 June there was a fortnightly clinical meeting at the surgery which the GPs and nurses attended. Nurse Swallow had reported that the pursuer was still constipated and in pain. She had recommended a half dose Fletchers’ enema and that had been agreed. He was aware at that time that a Microlax had been given the previous day but he was not aware of the appearance of fluid at the wound. From his examination the previous day he had been satisfied as to the integrity of the wound and had had no concerns about the enema. The aim was to relieve the pursuer’s constipation and pain. His view was that there would be more risk of damage to the wound from straining to pass stool than from the enema. Later on 20 June Mr B had telephoned and Dr Palanimurugan had returned his call. Mr B had said that the pursuer was still in pain, that the enema had not produced any results, and that he was worried how she would be over the weekend. Mr B had not mentioned blood and faeces during the call. If he had Dr Palanimurugan would probably have visited her immediately and called an urgent ambulance. In fact he asked Mr B if a time frame of one to two hours for an ambulance would be all right. Mr B had indicated it would. Dr Palanimurugan then contacted the hospital, spoke to the surgical ward, and arranged a non-urgent ambulance.
[17] Dr Palanimurugan accepted that he ought to have checked with the hospital before authorising the enema on 20 June. That is what he would do now in such circumstances. He believed that if he had contacted the hospital and explained the situation he would probably have been asked to try an enema.
Mr James Gordon Palmer FRCS
[18] Mr Palmer was aged 65 at the proof. He was a consultant general and colorectal surgeon at Cumberland Infirmary between 1989 and his retirement on 1 April 2011. In 2008, Cumberland Infirmary was a district general hospital. It was not a specialist centre. The pursuer was admitted in June 2008 for an anal sphincter repair and a levatoroplasty. She was given two phosphate enemas after her admission, one shortly before the operation. They would be administered by nurses on the ward and would not normally be regarded as traumatic interventions. The sphincter repair involved bringing two ends of muscle together to reconstitute a circle of muscle at a reduced diameter. In order to expose the spincter muscle for surgery a surgical wound was created in the area between the vaginal wall and the rectal wall. The apex of the surgical wound reached up to and exposed the levator. The levator is part of the pelvic floor muscles. Levatoroplasty was an “add-on” and involved drawing the levator muscles together. The slightly curved incision made in the pursuer’s perineum to create the wound would have been about two and one-half to three inches long. After the operation, in accordance with his normal practice, Mr Palmer left an open gap of about half an inch in the middle of the skin incision to allow drainage of old blood and serum. On either side of the gap were two or three sutures. Because of her previous medical problems the pursuer’s perineum was narrower than normal, but one consequence of the operation was an increase in its size. At the start of the operation the incision would have been about one-quarter of an inch from the pursuer’s anal margin at the nearest point of the curve. After the operation it would have been nearer to one-half of an inch from the anal margin (because the operation restored tissue to the perineal mass). As far as he was concerned the operation on the pursuer had been uneventful.
[19] In the following days when the pursuer remained an in-patient no concerns had been noted. Mr Palmer understood that the first bowel movement the pursuer had following the operation was a small bowel movement at 11.15am on Sunday 15 June. That was the only bowel movement recorded in the medical records. She was discharged from the ward on Monday 16 June.
[20] The pursuer was readmitted at 20.54 on Friday 20 June and Mr Palmer saw her the following day. She was in pain, distress, and unable to spontaneously evacuate her bowel to make herself comfortable. There was no sign of trauma to the surgical wound on the skin. The history given by the pursuer was that she had had difficulty evacuating her bowel for two days. She had been given a Microlax which had not produced any bowel motion or any distress. She had been given a phosphate enema but it had been extremely painful. Not long after that she had noted that she had vaginal discharge of faecal fluid. He could not remember the details of the conversation, but he was sure that he would have asked her what her problems were and he was confident that she would have told him. He thought the fact that he was aware of this was one of the reasons he decided to proceed to an examination under anaesthetic (the “EUA”). He agreed that the medical records did not record that, or any such complaints being made by the pursuer, before his note of his meeting with the pursuer and her husband on 26 June. He considered that was regrettable, but not wholly surprising since the system relied on junior doctors on the ward round making accurate notes. He was clear that the pursuer had related this information to him before the EUA. He recalled that following her readmission the pursuer had said that she had had more than one bowel movement between the operation and her discharge home.
[21] The EUA on the 21 June revealed quite a large quantity of stool in the rectum. It was “not rock hard”. Mr Palmer evacuated it. During the evacuation there was no disruption to the skin: it was very difficult to say there was no disruption to the repair but Mr Palmer “wasn’t in despair on that”. Had there been a large impaction the position would have been very discouraging. He then carried out a bimanual digital examination of the vagina and the anal passage. The bulk of the repair appeared to be intact. He could feel a communication between the vagina and the anal passage. When he looked into the vagina he could see an opening in the vaginal wall which corresponded with that communication. He did not try to directly visualise the opening in the anal wall. In the majority of cases where such fistulas occurred the opening in the anal wall was quite small. He concluded that there was a fistula (“the fistula”). While he described it as a recto-vaginal fistula in the operation note it was really in the upper end of the anal canal. It was at the apex of the surgical wound just below the level of the levator. In addition to the fistula Mr Palmer found a secondary superficial subcutaneous fistula (“the superficial fistula”) which led from a tiny opening just behind the open position of the wound to an opening in the skin. It did not extend into the anal canal. He decided that the most effective way of dealing with the fistula was to have some form of faecal diversion, such as a colostomy, to give the fistula time to heal. On 22 June he performed a trephine colostomy on the pursuer. At that time he was surprised by the large size of the opening in the vaginal wall - about one-quarter of an inch in diameter. He decided to close it using two sutures.
[22] On 26 June Mr Palmer had a discussion with the pursuer and Mr B about the cause of the pursuer’s difficulties. It had been a difficult discussion. The pursuer and Mr B were unhappy at her situation and wanted some explanation of why she found herself in that predicament. Mr Palmer’s view - which he communicated to them at that time - was that the fistula had been caused by the enema of 20 June having been mistakenly inserted into the wound instead of the anus. He explained to the court that the hole in the vaginal wall was likely to have been caused by the nozzle of the enema. If the nozzle was four and a half centimetres long it was possible that it would have to have been pushed fully into the wound to make the hole in the vaginal wall. He accepted that there would be a block of fibrous tissue in the centre of the wound space which would have been an impediment to the nozzle, but indicated that there would have been “pockets” to either side of it (one next to the vaginal wall, the other next to the anal wall) which the nozzle could have travelled up. It was possible that the tissues in the area of the fistula ought not to be regarded as normal because there had been dissection and cauterisation in the tissue planes. However he found it difficult to argue that both the hole in the vaginal wall and the hole in the anal wall could have been the result of mechanical trauma with the nozzle. For that to have happened the nozzle would have to have gone in two different directions, along each of the pockets. It was possible that the enema fluid may have had some role to play, but he accepted that was surmise. He accepted that there were possible causes other than the enema. He volunteered that the literature showed that fistulas developed in 6-10% of anal sphincter repair operations. Infection was a recognised cause, but he saw no sign of that. Iatrogenic injury during surgery was another recognised cause. That risk was present wherever there was surgical intervention. Mr Palmer thought it was an unlikely explanation in this case (i) because had he caused the hole in the vaginal wall he believed he would have seen it at the time (and repaired it); (ii) because had the fistula been caused on 12 June he would have expected discharge of faecal fluid from the vagina when the pursuer opened her bowels after the operation; and (iii) because of the temporal link between the pursuer experiencing a painful enema and the appearance of faecal fluid per vagina. He acknowledged that breakdown of tissue could be caused by a nick or a diathermy injury during surgery. Where, as here, tissue had been subjected to dissection and electro-surgery it was a possibility. He thought a diathermy injury would have been unlikely to cause a hole as sizeable as the hole in the vaginal wall. The damaged tissue could become necrotic and later form a hole. But he had seen no sign of necrosis at the margins of the hole in the vaginal wall. He accepted that the superficial fistula was an iatrogenic injury. He thought it was likely to have been caused by a hook on a lone star retractor.
[23] Mr Palmer indicated that before Dr Palanimurugan authorised the enema he (Mr Palmer) would have preferred if he had contacted the surgical team for their view. Had Dr Palanimurugan done so Mr Palmer “hoped” that the person he spoke to would have said “We will speak to Mr Palmer and call you back.” Mr Palmer said he would have wanted to know a little bit more about the clinical situation, e.g. whether there were signs of infection; how the patient was; how urgent it was that she be seen. If Dr Palanimurugan had been concerned he would have told him to send the pursuer to the hospital. If he had said he was thinking of giving a Fletchers’ enema Mr Palmer thought he would have said the hospital would prefer to be involved in doing that. If the pursuer had arrived with constipation and pain she would have been assessed and the appropriate treatment identified.
Professor Paul Horgan
[24] Professor Horgan was instructed as an expert witness by the pursuer. He was aged 54 at the proof. He is Professor of Surgery at the University of Glasgow and is a consultant colorectal surgeon. His area of special interest is cancer surgery. He thought that over his career he had done perhaps fifty anal sphincter repair operations. He said he had no reason to doubt that Professor Finlay may have performed more of such operations than him. From the information provided to him it seemed that the operation on the 12 June appeared to have had a successful outcome. The pursuer had passed stool in hospital which indicated that the anal canal was intact and that there was no recto-vaginal fistula then. If it had been present at that stage faecal fluid would have been likely to pass per vagina. In the post-operative period the pursuer had become constipated. There was very little difference between constipation and faecal impaction - it was a matter of degree.
[25] Professor Horgan’s opinion was that while there were no reports in the medical literature of an enema being mistakenly inserted in a surgical wound, given the proximity of the wound to the anus it would be an easy mistake to make if in a community setting a nurse was unaware of the wound’s existence. In the present case if the Fletchers’ enema had been inserted in the wound then that was the most likely cause of the fistula. He discounted the possibility of the fistula being caused by the enema fluid. He envisaged the hole in the vaginal wall would have been caused by traumatic contact with the tip of the enema nozzle. Evidence of trauma where the nozzle entered the wound might be expected. It was likely that the whole length of the nozzle would have to have been forcibly inserted. Because of the healing process the gap in the middle of the wound would be likely to be smaller than on the day of the operation, but the nozzle would fit into any aperture bigger than the head of the nozzle. He confirmed that if the pursuer had made complaints to medical personnel of severe pain caused by the enema and of the discharge of faeces and blood from her vagina he would expect that to have been noted.
[26] Professor Horgan considered that iatrogenic injury during the operation of 12 June was a far less likely cause than insertion of the enema in the wound. He thought there was no support in the medical literature for recto-vaginal fistulas occurring as a result of anal sphincter repair operations, or for diathermy burns being associated with them. He accepted that with any surgery there was a risk of iatrogenic injury. There was under‑reporting of such injuries. Here it was possible that injury could have been caused during the operation while cutting or stitching or cauterising tissue. He was initially reluctant to accept that there would be a greater risk of iatrogenic injury when working at the apex of the wound (because it was further away and there were increasing difficulties with visualisation). In his view it was incumbent upon a surgeon to make sure he had direct vision of the area where he was working. To consciously carry on when he did not would be negligent. He acknowledged that inadvertent injury could be caused using diathermy - mistakes did happen - but he did not accept that diathermy, if used properly, involved an increased risk of injury. He recognised that burns to the vaginal wall and the rectal wall could have been caused simultaneously by a diathermy tool. He opined that in that event it would be unlikely that holes would have appeared at precisely the same time. In each case the period involved would depend upon the thickness of the burns and the strains on each of the tissues. If iatrogenic injury had caused the vaginal hole to be created at the time of surgery he would have expected faecal fluid to have passed into the vagina before 20 June. It was possible that the area where the hole appeared could have suffered a nick during surgery or been burned or devascularised, and then become necrotic or ischaemic within the next 24 hours or so, with the hole developing some days later; but he thought that scenario unlikely. He would have expected Mr Palmer to notice any burn at the time and to have taken steps to repair it. Once again, in his view not to do so would be negligent. If damaged tissue became necrotic it would be the necrotic area which would fall away and leave a hole. The tissues would not be dead in the surrounding area, though they might be swollen histologically; and it was possible that the edges of the hole might be red and hyper‑anaemic. Mr Palmer had not noted any signs of necrosis or ischemia. Professor Horgan agreed that the appearance of Microlax fluid on the suture line was consistent with the anal mucosa having already broken down; he suggested that two other possibilities were that the Microlax had been mistakenly inserted into the wound, or that it had been inserted into the anal canal but into the repair.
Teresa Clark
[27] Ms Clark was aged 40 at the proof. She is a registered general nurse with 15 years experience. For about the last seven years she has worked as a community nurse. She has also recently begun to provide expert opinion evidence on nursing matters. She has prepared about four reports but she has not given evidence in court before. She was instructed as a nursing expert by the pursuer and she prepared a report (6/34 of process).
[28] In examination-in-chief Miss Clark’s evidence was that a nurse instructed to carry out an enema required to carry out her own assessment of the patient’s suitability. In this case there were contra-indications against administration in the PGD which the practice used. In those circumstances she should have reverted to the GP to discuss her concerns. If she still disagreed with the administration, but was instructed to proceed, she should have noted her dissent in the records. In the present case Nurse Bryson did not appear to have properly assessed the pursuer. If she had, the presence of contra-indications in the PGD ought to have led to her contacting Dr Palanimurugan to discuss them. She had not done that. Had she been in Nurse Bryson’s position she would have been concerned that there had been recent rectal surgery and would have wanted to speak to a doctor because of that “especially since [the pursuer] had not had a bowel movement since the surgery.” In these respects Nurse Bryson had acted as no nurse exercising ordinary care would have done. If she had inserted the enema in the wound that would also have been negligent. In cross‑examination she accepted that she could not say if exclusion 4 of the PGD (low bowel resection within the previous three months) was applicable here. She suggested that exclusion 10 (use of enema without success within the last 24 hours) might be applicable, but she acknowledged that it might not be because a Microlax enema was a very small volume enema whereas a Fletchers’ enema was quite a large volume. She also assumed that exclusion 11 (documented history of rectal pathology) was applicable because the pursuer had been having incontinence. She accepted that the PGD was designed to deal with circumstances where a nurse could prescribe without obtaining authorisation from a GP; and that whether or not an enema was appropriate was a matter which was properly for the doctor to decide. She agreed that where the doctor had properly considered the issues it was difficult for the nurse to dispute the adequacy of his decision. She accepted that where a nurse knew that a GP was aware of recent anal surgery and the patient’s circumstances she would not blame her for carrying out the doctor’s decision.
Dr Peter Thornton
[29] Dr Thornton was aged 65 at the proof. He was a partner in a GP practice between 1975 and 2008. Following his retirement in 2008 he worked part-time as a GP until September 2010. He is a senior tutor in general practice at Dundee University. He was instructed as an expert witness for the pursuer and he prepared a report (6/18 of process). Dr Thornton opined that when Dr Palanimurugan authorised the enema on 20 June (i) he had not carried out a proper assessment to enable him to be confident about a diagnosis of constipation, and (ii) he failed to discuss or evaluate the risk of instilling laxative material directly into the bowel in proximity to the area of recent surgery. His actions departed from usual and normal general practitioner practice and the course he adopted was one which no ordinary practitioner would have adopted if acting with ordinary care.
[30] Dr Thornton explained that the Microlax enema administered on 19 June was a small volume micro-enema (5ml). The volume of enema fluid was much smaller than in a Fletchers’ enema. Dr Thornton considered that if Nurse Gunning had told Dr Palanimurugan that fluid had appeared on the suture line he would have expected him seek clarification as to whether it was enema fluid and where she thought it had come from. Had it been confirmed that the fluid was enema fluid and that it appeared to have come from the rectum it would have been negligent to administer a further enema. Dr Palanimurugan ought to have contacted the hospital.
[31] Dr Thornton’s view was that whilst there may have been some justification for enema use if there had been faecal impaction: “It should only have been employed when there was no doubt about the diagnosis, and even then with great caution and care.” Dr Thornton considered that in the absence of a rectal examination on 19 June there could have been no certainty about the diagnosis of faecal impaction: and that if an enema was being considered the proper course would have been to have reviewed the pursuer to make a further assessment and to confirm or exclude the diagnosis of by performing an abdominal and rectal examination. If on reassessment Dr Palanimurugan’s assessment was confirmed, it would have been a matter for his clinical judgment as to whether the risk of trauma to the wound was outweighed by the risk of unrelieved faecal impaction. In that event, provided an appropriate explanation was given to the pursuer and informed consent was obtained, and the procedure was undertaken “with extreme care”, it would have been compatible with the exercise of ordinary care.
The first defenders’ case
Professor Ian Finlay FRCS
[32] Professor Finlay was instructed as an expert witness by the first defenders. He was aged 62 at the proof. Between 1986 and December 2013 he was a consultant colorectal surgeon at Glasgow Royal Infirmary. He is an honorary professor at the University of Dundee. His areas of special interest are (i) colorectal cancer, and (ii) sphincter problems and the development of artificial sphincters. He estimated that during his career he had performed 300 - 400 anal sphincter repairs - far more than any other surgeon in Scotland. He had worked alongside Professor Horgan for 20 years. He was a highly respected colleague. During that period Professor Finlay saw Professor Horgan’s surgery lists. Professor Horgan’s academic commitments resulted in his clinical work being restricted to one day a week. Professor Horgan’s specialty is cancer. Professor Finlay’s impression was that Professor Horgan had not carried out a substantial number of anal sphincter repairs. If he had carried out as many as 50 then a large number of them must have been since September 2013.
[33] Professor Finlay explained that it was more accurate to describe the fistula as an anal-vaginal fistula than a recto-vaginal fistula. It was just below the level of the levator - a fistula above the levator was a recto-vaginal fistula, but one below it was an anal-vaginal fistula. Anal-vaginal fistulas were quite common following anal sphincter repair. In his literature search Professor Horgan appeared to have searched only the terms “recto-vaginal fistula” and “anal sphincter repair”. There was clear evidence in the literature indicating that the incidence of fistulas after anal sphincter repair operations was about 6 - 10 %. The vast majority of those would be anal-vaginal fistulas. The article by Oon et al (27/3 of process) was one of perhaps 400 papers dealing with the topic. Recto-vaginal fistulas were rare following this type of surgery, but Professor Finlay had seen two or three cases.
[34] Professor Finlay thought it was noteworthy that none of the medical records until the entry of 26 June made reference to the pursuer complaining that she had suffered severe pain during the enema or that following the enema she had had faecal discharge from her vagina. They were significant matters and he would have expected medical personnel to whom such complaints were made to have noted them. If, as Mr Palmer indicated, the pursuer had informed him of these matters at the ward round of 21 June it was surprising that the ward round note (6/2 of process page 49 at 08.30) made no reference to them or to the possibility of a fistula, but simply recorded Mr Palmer’s impression as “Likely faecal impaction”. It appeared that rectal impaction had been the principal concern and the principal diagnosis. The patient consent form to the EUA (6/2, page 265) completed by Mr Palmer made no reference to a suspected fistula. It stated the intended benefits of the EUA as being “Relief of Symptoms”. Notwithstanding the finding of the fistula and the superficial fistula at EUA, the ward round note at 16.45 on 21 June (6/2, page 49 at 16.45) had stated: “Patient informed that tissues around sphincter repair are not healing well (in upper area of repair).” The note suggested that the pursuer may have been given an inaccurate account of the problem at that stage - possibly to soften the blow. The terms of Mr Palmer’s note of 26 June (6/2, page 52) were the first record of a complaint relating to the enema. It followed a discussion between Mr Palmer, the pursuer and her husband. The language used was odd:
“…We have agreed that the second enema administered by the D/N on Friday 20/6/08 produced immediate and severe discomfort and was followed by the appearance of liquid stool in the vagina…”
The idea of agreement seemed inappropriate. There seemed to have been a desire on Mr Palmer’s part to identify a cause unrelated to the operation. There was no doubt that dealing with patients who found themselves in such predicaments was never easy, but there appeared to be a degree of defensiveness by Mr Palmer in his dealings with the pursuer.
[35] Professor Finlay agreed with Professor Horgan that the fluid from the enema was a most unlikely cause of the fistula. The pressure from a small quantity of enema fluid would not be significant. Inflammatory or caustic damage would not have been restricted to the two holes - it would have been more widespread. He considered that on 20 June – eight days after the operation - the wound would have been likely to have been virtually healed. The whole operation area would have been fairly well stuck together. The sutures were due to be removed on 23 June. The healing and stickiness of the wound would have made insertion of the enema very difficult. The location of the fistula from the surface wound was such that in order for the nozzle to reach it it would have to have been inserted to the hilt. Had the enema been inserted in the wound he would have expected to see signs of trauma from the insertion but no such signs had been noted. The vaginal wall was one the toughest membranes in the body. It was twice as thick as skin. Both the vaginal wall and the rectal wall were strong and floppy with a fair degree of give in them. It was very difficult to envisage that something as soft as a rubber nozzle (such as 6/44 of process) could have caused the damage to the vagina or the rectum. Professor Finlay demonstrated his point by striking his face forcibly several times with the nozzle. In each case the nozzle folded under pressure without causing any injury to his face. If the tissue had been weakened or damaged as a result of surgery it might have been possible for traumatic contact with the nozzle to cause a hole, but it would have to have been very precarious indeed to be penetrated by a soft nozzle. The evidence did not indicate that the tissue was precarious because of surgery. The EUA findings did not indicate that the tissue around the fistula was anything other than normal or near normal. That suggested that prior to the hole being created the tissue there was also in that condition. No infection or ischemia was noted. Indeed if the vaginal wall had been sufficiently precarious any number of trivial insults (such as straining, coughing or sneezing) could have caused it to breach.
[36] Another difficulty with the proposition favoured by Professor Horgan was that it did not explain how both the rectal wall and the vaginal wall had come to be damaged. If the nozzle had entered the wound the only free access would have been a tunnel to the vaginal side and a tunnel to the rectal side. The rest of the wound space would have been taken up with a mass of tissue. The nozzle would have had to be inserted so as to bypass the wodge of tissue. To cause both holes it would have to have been inserted down one tunnel and then inserted down the other tunnel. That was not credible. Here there was said to have been only one insertion in the wound.
[37] The probability was that at least the breach in the rectal wall was present by 19 June when the Microlax enema was administered. The vaginal wall might not have been breached at that time - though it was possible that it had been but the quantity of Microax fluid was insufficient to cross over to and pass through the hole in the vaginal wall.
[38] The fistula would have had a narrow track. While faecal fluid could have passed down it, Professor Finlay would not have expected formed faeces to pass. If the pursuer or her husband saw formed faeces at her vagina it seemed much more likely that it would have moved externally from the anus to the vagina. If there had been blood in the faecal fluid trauma caused by the nozzle was not the only possible cause. It could have been attributable to the rectal wall or the vaginal wall breaking down following necrosis.
[39] In Professor Finlay’s view the most likely cause of the fistula was iatrogenic injury - technical misadventure during the operation of 12 June. That was much more probable than the enema being the cause. Fistulas were a recognised complication of sphincter repair operations. The apex of the wound was a very difficult site to work at - it was like operating in a sock. The tissues were floppy and could easily fall. When a fistula occurred at this level it was usually due to technical misadventure. The iatrogenic injury could have been caused by any one of a cadre of events, including cutting or stitching, or by inflicting diathermy burns. Injuries to the vaginal wall and the rectal wall could have been caused simultaneously by a diathermy tool. Such injuries were especially likely to occur in the confined space at the apex of the wound. That was the most likely, but not the only, way in which they could have been sustained accidentally during surgery. It would explain the holes in both walls in close proximity. If diathermy burns were seen they were repaired and that was what normally happened. But there would be unlikely to be much to see - white scorch marks over a few millimetres. Diathermy burns were missed in practice, and the apex here was a very enclosed space. If burns had been inflicted and the injury sites were devascularised they would have become necrotic and would have fallen away leaving the holes. All of the dead tissue would have fallen away leaving a clearly circumscribed hole like the hole observed in the vaginal wall. That process could have taken five to eight days. He wouldn’t have expected to see any macroscopic features such as scarring at the edges of the hole (it was possible that microscopic changes might have been evident had the surrounding tissue been examined under a microscope). A tiny lone star hook would have been very unlikely to cause the superficial fistula. The fact the superficial fistula was there at all suggested that not all was well with that operation and general healing. While Professor Finlay accepted from Mr Palmer that the wound was not infected, the very high white blood cell count on the day after the operation, and the history of increasing and severe pain after discharge from hospital, suggested that something was amiss.
[40] If a GP had contacted Professor Finlay, reported the pursuer’s complaints (other than Microlax fluid at the suture line), and suggested an enema, Professor Finlay may have agreed to that. It was possible he might have asked to see the patient. He considered that the risk of complications from the administration of a Fletchers’ enema was extremely small - so small that he would not have thought it necessary to explain possible complications to patients. He would have wanted to relieve the symptoms. He would have instructed an enema or would have irrigated the rectum using a tube. An enema would be the obvious (and almost automatic) thing to do. It involved far less risk than manual evacuation.
Dr Niall Cameron
[41] Dr Cameron was aged 54 at the proof. He practises as a GP in Glasgow. He was instructed as an expert witness by first defenders. Dr Cameron agreed with Dr Thornton that it was negligent of Dr Palanimurugan to have agreed to the enema at the practice meeting on 20 June. However Dr Cameron did not consider that it had been essential for Dr Palanimurugan to have gone to reassess the pursuer before deciding on the next step. He had seen her the previous afternoon and the current information about her condition was discussed at the meeting. In Dr Cameron’s view the appropriate course would have been to have contacted the surgical team at the hospital to discuss the next step. Had Dr Palanimurugan done that it seemed likely that the surgical team would have wished to see and reassess the pursuer.
[42] In Dr Cameron’s opinion it was not for the GP to obtain informed consent from a patient for an enema. That was not usual or normal practice. In his experience that task, and that responsibility, rested with the nurse who was to administer it. That applied whether the enema was administered in hospital or in the community. In this case the pursuer was familiar with enemas and what they involved - she had had two shortly before the operation of 12 June. All that Dr Cameron would expect the nurse to explain would be what the procedure involved, that it was undignified, and that it could be uncomfortable. He would not expect a warning that there was a risk of the enema being inserted in the wound. Such insertion would be negligent and it was not normal to warn of such risks. It was not usual or normal practice for GPs to instruct nurses who were administering enemas as to the risks which they should outline to the patient.
The second defenders’ case
Nurse Isabel Gunning
[43] Nurse Gunning was aged 55 at the proof. She is an experienced nurse and for the last eight years has worked as a community nurse. She had worked alongside Nurse Bryson. She described Nurse Bryson as a good and very experienced nurse. In response to a question in examination-in-chief she said she thought it was highly unlikely that Nurse Bryson would have inserted an enema into the pursuer’s wound.
[44] When Nurse Gunning attended at the pursuer’s home on 19 June she had taken a history from the pursuer. The pursuer had explained about her operation and that she was in a lot of discomfort. She felt like she wanted to go to the toilet but could not. That had been the position since her discharge from hospital. On examination the surgical wound looked fine. It was quite obvious. When the pursuer was lying on her left side with her knees up it was possible to visualise the whole perineum. There was no inflammation, discharge or reddening. The pursuer’s pain wasn’t coming from the wound, it was abdominal pain. Nurse Gunning administered a 5ml Microlax enema. When about half of the fluid had been delivered into the anus some of it had appeared on the suture line. Nurse Gunning decided not to continue with the enema. She went to see another patient and returned half an hour later. The pursuer said she had been to the toilet a wee bit but she wasn’t any better, she was still uncomfortable. When Nurse Gunning returned to the surgery she told Dr Palanimurugan what had happened: that the pursuer was constipated; and that she had given her a Microlax but that some of it had appeared at the suture line. Dr Palanimurugan had been at his desk. He had said he would visit the pursuer after surgery. Nurse Gunning made the following entry in the nursing notes (6/1 of process, page 2):
“19 June 2008 Gunning I
severe pain last night feels constipated tried ½ microlax enema but feels it not in the bowel? Appeared on suture line faecal fluid only at anus returned later no better asked dr morgan (sic) to assess”
Authorities
[45] During the course of submissions reference was made to the following authorities: Chester v Afshar [2005] 1 AC 134; Sidaway v Board of Governors of the Bethlem Hospital and the Maudsley Hospital and Others [1985] 1 AC 871; Tina Marie Pearce v United Bristol Healthcare Trust [1999] ECC 167; NM v Lanarkshire Health Board [2013] CSIH 3; Hunter v Hanley 1955 SC 200; Honisz v Lothian Health Board and Others 2008 SC 235; Bailey v Ministry of Defence and Another [2009] 1 WLR 1052; Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Boustead v North West Strategic Health Authority [2008] EWHC 2375 (QB); McTear v Imperial Tobacco Ltd [2005] 2 SC 1; Glancy v Southern General Hospital NHS Trust [2013] CSOH 35; Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285.
Decision and reasons
Introduction
[46] While I was favoured with detailed written and oral submissions I feel able to express my conclusions relatively briefly.
[47] Mr Hofford asked the court to conclude that the second stage of the insertion of the enema by Nurse Bryson had been into the surgical wound rather than into the pursuer’s anus. If the court accepted that then it should also accept that it was that insertion which had caused or materially contributed to the development of the pursuer’s fistula.
[48] During the proof Mr Hofford made a number of objections to evidence being elicited or admitted. Only two of those objections were renewed during his submissions.
[49] The first of these was an objection taken to cross‑examination of Mr Palmer by Mr Bowie that a wodge of tissue in the wound space would have impeded the enema nozzle getting to either of the sites where damage had been caused to the vaginal and the anal walls. The basis of the objection was that there had been no notice of this issue in the defenders’ pleadings. I allowed the questioning subject to competency and relevancy. Mr Palmer accepted the tissue would impede progress across it, but he explained that there would nonetheless be pockets on either side of it where the nozzle could have proceeded. Thereafter, during cross‑examination of Professor Horgan Mr Bowie asked him whether the bulking up of the issue in the wound space would create an impediment to the nozzle getting further up the wound. There was no objection to the question. Professor Horgan replied that it depended on the direction of insertion of the nozzle. During examination-in-chief of Professor Finlay evidence was given by him without objection as to the impediment which the wodge of tissue created.
[50] I repel the objection. The evidence relates to the anatomy of the surgical wound space after the operation. It is not a matter in relation to which I consider it was necessary for the defenders to make specific averments. In any event there was no prejudice to the pursuer in such specification not having been provided – Mr Palmer and Professor Horgan were able to deal with the point at the proof (and there was a substantial degree of common ground between them and Professor Finlay in relation to it).
[51] The second objection came during Professor Finlay’s examination-in-chief. Professor Finlay had given evidence that the fistula was probably caused by technical misadventure. He went on to describe a number of possibilities including a diathermy burn at the apex of the wound. He explained in some detail the reasons already noted for a diathermy burn being a particularly good explanation for the fistula. After that evidence had been led Mr Hofford objected to the line of evidence on the basis that there was no record for it and that it had not been put to Mr Palmer or Professor Horgan. I allowed the questioning to continue subject to competency and relevancy. Professor Finlay then continued in the same vein.
[52] The context of this objection was that during examination-in-chief Mr Palmer had indicated that diathermy had been used during the operation on 12 June. In cross‑examination by Mr Bowie it was put to him that the breakdown of tissue could be caused by a tiny nick during surgery, which led to a patch of necrotic tissue and in time to a hole. Mr Palmer accepted that. He added that it was a possibility with any tissue which had been subjected to dissection or electro-surgery. Later he emphasised that the surgical field had been subjected to physical and electrical surgery. During re-examination Mr Palmer was asked whether he thought the fistula had been caused by a diathermy injury. He indicated that he thought it unlikely that a diathermy injury would result in a hole as sizeable as the one he observed in the vaginal wall. He explained that use of the cutting mode of diathermy was for cutting tissue and the co-agulating mode was to cauterise tissue. Diathermy could result in devascularisation of tissue and necrosis. During Professor Horgan’s evidence‑in‑chief he indicated that it was possible there could have been devascularisation at the site of the fistula during the operation. During cross‑examination Mr Bowie put it to Professor Horgan that there was an increased risk of inadvertent injury at the apex of the surgical wound, and that, in particular, there was an increased risk when diathermy was used there. Professor Horgan replied that he did not think that diathermy increased the risk of injury if it was used properly.
[53] At the end of the defenders’ evidence Mr Hofford moved for leave to recall Professor Horgan to give further evidence in relation to diathermy, and in particular to put Professor Finlay’s evidence in relation to diathermy injuries to him. I granted the motion. On his recall Professor Horgan gave evidence that tissues could be damaged inadvertently with diathermy, but in his opinion such damage would involve an error of competency by the surgeon. He had used diathermy in all the anal sphincter repair operations he had done and he was unaware of having caused any diathermy burns. He thought if tissue was burned the surgical team would be likely to notice it - it would appear blanched. He would have expected a burn the size of the hole in the vaginal wall to have been noticed. Not to notice it would have been negligent. He accepted the possibility of diathermy causing a bilateral burn to the vaginal wall and the anal wall, but he would have expected Mr Palmer to notice it if it had happened.
[54] I repel the objection. First, in my opinion there is a sufficient basis in the pleadings for the evidence to be admitted. The second defenders clearly aver (Ans. 5 page 30 A-B and page 32C) that the cause of the fistula was that the tissues involved were devascularised and breaking down due to one or more of infection, necrosis or iatrogenic damage. (The first defenders aver (Ans. 5 page 28D) that the pursuer’s vagina was damaged during the sphincter repair operation and that the fistula would have occurred with or without the enema; and (page 29A-B) that the second defenders’ averments in answer are believed to be true.) Diathermy injury is a type of iatrogenic damage. Second, the objection came rather late in the day, after the possibility of diathermy injury had been discussed without objection in the evidence of Mr Palmer (indeed Mr Hofford specifically asked him in re-examination whether he considered the fistula had been caused by a diathermy injury), Professor Horgan, and (before the objection) Professor Finlay. Third, and in any event, I do not consider that the pursuer was prejudiced by the absence of specific reference to diathermy injury in the pleadings. Mr Palmer rejected diathermy injury as a cause. No party moved to recall him. Professor Horgan had ample opportunity to set out his views and to rebut Professor Finlay’s views.
[55] Except in so far as I express reservations below, the witnesses to fact appeared to me to be doing their best to tell the truth and I have treated their evidence as being substantially reliable. However I have not accepted certain parts of the evidence of the pursuer, Mr W, Nurse Gunning and Mr Palmer.
Did Nurse Bryson insert the enema into the wound?
[56] The principal evidence upon which this matter falls to be determined is of course the evidence of the pursuer and Nurse Bryson.
[57] At the material time Nurse Bryson was a very experienced nurse. She was respected by her colleagues as being a good nurse. She was very familiar with the administration of enemas. She gave her evidence in a straightforward way. She accepted without demur that at the time she had been unaware of the wound and that she had not seen it. Nonetheless her evidence was (and the pursuer accepted) that during the first stage of the enema she located the pursuer’s anus and inserted the nozzle into it. The critical question is whether during the second stage of the enema she reinserted it in the anus or inserted it in the wound. On that matter Nurse Bryson was clear that she had sight of the anus and that that was where she reinserted the enema. It is common ground that the pursuer made no complaint of pain to Nurse Bryson during the procedure or after it, and that she did not start or otherwise react physically to the enema during the procedure. However the pursuer’s account is that she experienced very severe pain indeed, and that she was “frozen”, “paralyzed” with the pain, with the result that she was unable to communicate her distress or make any voluntary or involuntary movement; and that this persisted until after Nurse Bryson had left.
[58] In so far as their accounts of the administration of the enema differ, I find Nurse Bryson’s account to be more reliable than the pursuer’s account. I am satisfied that neither witness was consciously seeking to mislead the court. However, I am also satisfied that parts of the pursuer’s evidence do not provide a reliable account of events. The pursuer may well have convinced herself of their truth, but I do not consider that her recollection as to them is dependable.
[59] The matter of greatest concern in Nurse Bryson’s evidence is the fact that she did not see the wound. The wound was very near the anus (not more than one-half of an inch away from it). At the time of the enema the pursuer was obese (about 100kg) and Nurse Bryson thought it possible that she may not have seen the wound because of the pursuer’s position, or her body size, or the folds of her skin. On the other hand, when Nurse Gunning administered the Microlax enema the previous day she had been able to visualise the whole perineum, including the wound. Whatever the explanation for Nurse Bryson not seeing the wound, the fact that she was unaware of it increases the possibility that she might have mistaken it for the anus. In my opinion that would have been a more disquieting possibility if there had been no evidence that Nurse Bryson had correctly visualised and identified the anus. However it is incontrovertible that she did that during the first stage of the enema. Having correctly identified the anus, knowing what it looked like and having sight of it, it seems to me to be highly unlikely that an experienced nurse would then insert it in the wound.
[60] I accept that it is possible that the pursuer did indeed suffer a degree of discomfort or pain during the enema (whether from the presence of the nozzle and fluid in the anus or from inadvertent non-penetrative contact of the enema or Nurse Bryson’s hand with the exterior of the wound) but I do not accept her evidence that she suffered severe pain. I accept her husband’s evidence that she told him that “It hurt”. I also accept the evidence that shortly after the enema the pursuer had discharge of faecal fluid with some blood in it from her vagina. I accept the medical evidence that faecal fluid and very small pieces of faecal material could have passed along the fistula from the rectum, but I do not accept that formed stool of the dimensions described by the pursuer or her husband took that route. I accept the evidence that such stool, if seen at the vagina, is much more likely to have moved externally from the rectum.
[61] If the second stage of the enema had caused the pursuer very severe pain I would have expected her to have reacted in some way, voluntarily or involuntarily. I think it highly improbable that she was in a state of paralysis which prevented her from flinching, reacting or crying out in the face of excruciating pain. I find it equally unlikely that no sign of distress or something having gone wrong would have been apparent to Nurse Bryson. Similarly, it would be astonishing if the pursuer had not communicated her distress to Nurse Bryson before her departure.
[62] Other factors which tend to support Nurse Bryson’s account of events are (i) the lack of any signs of trauma to the exterior of the surgical wound; (ii) the absence of any contemporaneous note in any medical records (until the entry of 26 June following the meeting with Mr Palmer) of the pursuer having reported that the enema had caused severe pain (or indeed any pain). Had the experience been as traumatic and painful as the pursuer suggests I would have expected that she would have related that to the medical personnel that she communicated with; and that the matter would have been given very considerable prominence by her when she made those reports. The pursuer was not prone to understatement during the course of her evidence. I very much doubt if she would have understated or omitted to state an experience of excruciating pain (and a sensation of internal tearing) if that had indeed been what she felt during the enema.
[63] I am not confident that I can rely upon Mr Palmer’s evidence that at the ward round on 21 June the pursuer told him that the enema had been very painful. That recollection is not supported by the ward round notes made at the time. When the fistula was discovered it was obvious that consideration would require to be given to the possibility of an iatrogenic injury having been the cause. By the time of the meeting with the pursuer and her husband of 26 June Mr Palmer knew he was dealing with a patient who was understandably distressed at her predicament (which included her having a colostomy) and who wanted an explanation. The evidence of the pursuer and her husband, and indeed of Mr Palmer himself, points to him having very firmly alighted on the enema as the cause at that early stage. A similar view was communicated in his letter to the first defenders’ Dr Rigg on 6 August (6/40 of process). While Mr Palmer’s wish to find an explanation other than iatrogenic injury was, and is, understandable, he had, and has, an obvious interest in the matter. I agree with Professor Finlay that the language of Mr Palmer’s note of 26 June (6/2, page 52) - in particular the recording of facts in relation to which “We are agreed” is unusual. This entry and the earlier entries following the EUA do suggest a degree of defensiveness on the part of Mr Palmer. In the whole circumstances, and in particular in the absence of any contemporaneous record confirming it, I do not accept that Mr Palmer’s recollection of what the pursuer said on the ward round is reliable.
[64] Had the expert evidence been that the fistula was inexplicable unless the enema was inserted in the wound, that would have been material a factor I would have had regard to when assessing the evidence of the pursuer, Nurse Bryson and Mr Palmer. However, that is not the position. Anal-vaginal fistulas are a recognised complication of anal sphincter repair operations. There are a number of other possible causes of the fistula other than insertion of the enema in the wound. In any case, as I explain below, even on the hypothesis that the enema was inserted in the wound I am not persuaded that the evidence indicates that the insertion was the cause of the fistula.
The Microlax enema
[65] I accept Nurse Gunning’s evidence that enema fluid appeared at the suture line when she administered the Microlax, causing her to cease the administration midway. I also accept her evidence that she spoke to Dr Palanimurugan, told him that the pursuer’s problem had not been resolved, and asked him to assess the pursuer. While Dr Palanimurugan did not recall any such conversation, he accepted that someone must have asked him to make a house call. The entry in the nursing notes records that Nurse Gunning asked him to assess the pursuer, but it does not record that she told him about the enema fluid. Whether she referred to it or not during that conversation, I am not satisfied that it was clearly impressed upon Dr Palanimurugan that enema fluid had appeared at the suture line during the enema. I accept Dr Palanimurugan’s evidence that had he appreciated that fact he would have acted differently. He would have made a note of it in the records and would have sent the pursuer to hospital. Standing the decisions he took on 19 and 20 June I think it highly unlikely that he knew about it.
Mr Palmer’s examination findings
[66] Mr Palmer found that the pursuer had a fistula between the vagina and the anal passage at the upper end of the anal canal. The plane of the fistula was at the apex of the surgical wound just below the level of the levator. There were holes in the vaginal wall and the rectal wall at this level. In addition, at a lower level nearer the anus there was the secondary superficial fistula which led from a tiny opening just behind the open position of the wound to an opening in the skin. It did not extend into the anal canal. When he repaired the hole in the vaginal wall Mr Palmer observed no signs of necrosis or ischemia around the edges of the hole or in the surrounding area.
The expert opinion evidence
[67] The pursuer’s case and Professor Horgan’s thesis are founded on establishing that Nurse Bryson inserted the enema into the wound. As I have found that Nurse Bryson did not insert the enema into the wound, the pursuer has failed to prove her case. However, since the opinion evidence and the submissions thereon took up a significant part of the proof, I think it appropriate to outline my conclusions in relation to that evidence.
[68] Both Professor Horgan and Professor Finlay are eminent surgeons. Both have experience of carrying out anal sphincter repairs. I am grateful to them both for the very considerable assistance they have given me in carrying out my task.
[69] I accept the evidence that Professor Finlay has carried out considerably more of these operations than Professor Horgan. By Professor Horgan’s estimate he had carried out about 50 over the course of his career. Professor Finlay estimated that he has carried out 300-400 and I see no reason to doubt his evidence on that matter. Professor Horgan did not contest that Professor Finlay may well have carried out a greater number of such operations than he had.
[70] Even if, contrary to my findings, the correct hypothesis is that Nurse Bryson did indeed insert the nozzle into the wound, I would not have been not satisfied that the enema caused or materially contributed to the fistula.
[71] I accept Professor Finlay’s evidence that fistulas are a recognised complication of anal sphincter repair operations which occur in between 6%-10% of operations. That evidence is consistent with the literature which he referred to, and it accords with his experience. It is also in accordance with Mr Palmer’s evidence. It is true that most such fistulas are anal-vaginal fistulas and most of them are at a lower level than the fistula in this case, but the fistula here was below the levator and was truly a fistula between the top part of the anal passage and the vagina rather than a recto-vaginal fistula. Professor Finlay agreed with Professor Horgan that true recto-vaginal fistulas were rare, but in fact Professor Finlay had seen two or three examples.
[72] I recognise of course that there is no evidence of any fistula becoming apparent before 19 June. Had both the hole in the anal wall and the hole in the vaginal wall been formed during the operation on 12 June then evidence of faecal fluid in the pursuer’s vagina would have been expected when the pursuer made bowel movements after the operation. In fact the first evidence indicative of there being a hole in the anal wall was on 19 June when the Microlax fluid reappeared at the suture line. Professor Finlay posits that on 12 June injury to the vaginal wall and to the anal wall could have resulted in devascularisation, which was followed by necrosis, leading ultimately to the necrotic tissue disintegrating and leaving holes. That scenario is consistent with the pursuer’s history of a high white blood cell count the day after the operation and her increasing and severe pain during what should have been the recovery period following the operation. As Professor Finlay observed, those features suggest that something was amiss with the operation and general healing. Professor Horgan accepts that the scenario is a possibility, but he rejects it because there was no evidence of necrosis surrounding the hole in the vaginal wall; and because the presence of blood in the pursuer’s faecal fluid suggests to him that trauma had been a factor. I found Professor Finlay’s answers to those observations convincing. He would not have expected signs of necrosis in the tissue surrounding the hole in the vaginal wall. Tissue which had been devascularised and become necrotic would have fallen away creating the hole. It would be healthy tissue which remained. Any changes in that surrounding tissue would be unlikely to be evident on visual inspection (as opposed to microscopic examination). The presence of blood in the faecal fluid could have been caused by the process of tissue falling away to form a hole.
[73] Professor Horgan’s thesis requires the nozzle to have been fully and forcefully inserted (into the wound). I accept Nurse Bryson’s evidence that she did not insert the nozzle fully and that when she inserted it she did so gently. The lack of any evidence of injury at the suture line is a contra-indication to there having been full and forceful insertion there.
[74] I also accept Professor Finlay’s evidence that the vaginal wall is one of the strongest membranes in the body, with a degree of flexibility, and that it is extremely unlikely that something as blunt and lacking in rigidity as the enema nozzle would have made a hole in it. I do not accept the proposition that the area where the injury was sustained may have been especially vulnerable to damage as a result of surgery and cauterisation having taken place at that plane. There was no evidence that Mr Palmer found the area surrounding the hole in the vaginal wall to be anything other than normal or near normal. It held sutures without any difficulty.
[75] Professor Horgan’s thesis has to face up to the fact that there were holes in both the vaginal wall and in the anal wall. Professor Horgan recognised this as a difficulty for the “enema caused the fistula” thesis (as indeed did Mr Palmer). While Professor Horgan suggested that the two holes could have been caused by two separate thrusts of the nozzle in very different directions, there is no evidence of there having been two such thrusts.
[76] In any case, the appearance of the Microlax fluid on the suture line on 19 June strongly suggests that the hole in the anal wall existed on that date. I reject the other possible explanations suggested by Professor Horgan for the Microlax fluid appearing on the suture line. There is no evidence that Nurse Gunning inserted the enema nozzle directly into the wound; and there is no evidence that she inserted it into the wound from the anus. Nor is the transit of the enema fluid explained by the superficial fistula. Mr Palmer’s evidence was that that “fistula” did not communicate all the way through to the anal passage - it stopped a good way short of doing so. The fact that Microlax fluid was not evident at the vagina is consistent with at least two possibilities. First, that there was not a communication between the wound and the vagina at that time. Second, that there was such a communication but that the volume of Microlax fluid inserted in the anus by Nurse Gunning (about half of 5 millilitres) was insufficient for any of it to make its way to the vagina. In either case Professor Finlay’s thesis provides a credible explanation for the communication becoming apparent when it did.
[77] The explanation of iatrogenic injury seems to me to be particularly plausible given that the injuries were sustained at the apex of the wound where visualisation would have been most difficult and where the risk of inadvertent damage by the surgeon was greatest. In that regard I found it surprising that Professor Horgan was reluctant to accept the greater difficulties of working at the apex of the wound: but I prefer Professor Finlay’s evidence to Professor Horgan’s on this matter because of his much greater practical experience of the operation, and because Professor Finlay’s view accords with common sense. Professor Horgan’s insistence that only a negligent surgeon would fail to notice if he had caused a diathermy burn there struck me as inflexible and dogmatic. I very much doubt that the issue lends itself to such a bright line demarcation. Whether in such a situation a surgeon will have failed to exercise ordinary care is likely to be fact-sensitive.
[78] For all these reasons I find Professor Finlay’s reasoning to be more persuasive than Professor Horgan’s. His thesis that the fistula is more likely to have been caused by iatrogenic injury sits better with the evidence than Professor Horgan’s thesis of it having been caused by traumatic contact with the tip of the enema nozzle. I am satisfied on the evidence that the injuries which resulted in the fistula could have been caused while cutting or suturing or cauterising. Damage caused simultaneously by the opposite sides of a diathermy tool would provide a particularly good fit, because it would explain the corresponding damage in the vaginal and anal walls; but it is one of a cadre of possible mechanisms of iatrogenic injury. It is unnecessary to go so far as to conclude that on the balance of probabilities the fistula was caused by iatrogenic injury. It is sufficient to say that I am satisfied that iatrogenic injury is a more likely cause of the fistula than trauma caused by the enema, even on the hypothesis (contrary to my finding on the matter) that the enema was inserted into the wound. Of course, it does not follow that if iatrogenic injury was the cause here it involved a failure on the part of the surgical team to exercise ordinary care. In the course of surgery technical misadventure can occur even where ordinary care has been exercised.
Negligence
[79] Since the pursuer has failed to prove that the enema was inserted into the wound or that it caused the fistula her cases against both defenders fail. In those circumstances it is unnecessary to deal with the question of negligence. None of the breaches of duty founded upon caused the pursuer to sustain the loss and damage which she claims. Nonetheless, I shall provide a very brief indication of my views.
[80] It is common ground that Dr Palanimurugan was negligent in failing to contact the surgical team for advice before authorising the enema on 20 June. In light of Dr Cameron’s evidence I do not accept that Dr Palanimurugan was negligent in failing to revisit and reassess the pursuer on 20 June. He had assessed her the previous day and her case was discussed on 20 June at the practice meeting. Nor do I accept the proposition that the administration of an enema would only have been appropriate if a clear diagnosis of faecal impaction was made. Professor Horgan and Professor Finlay both saw faecal impaction and constipation as differing only in degree, and even Dr Thornton tended to use the terms interchangeably during the course of his evidence. On any view, here the pursuer was having very distressing difficulties with constipation. Laxatives had produced no relief, nor, so far as Dr Palanimurugan was aware, had a Microlax microenema. As Professor Finlay indicated, the obvious next measure was a Fletchers’ enema.
[81] For the reasons already explained the pursuer has failed to establish the factual foundation of her case that Dr Palanimurugan was negligent in failing to refer the pursuer to hospital on 19 June after the Microlax enema. I accept Dr Palanimurugan’s evidence that he was not informed at that time (or the next day) of the appearance of Microlax fluid at the suture line.
[82] That leaves the pursuer’s case that it was Dr Palanimurugan’s duty to explain the risks of the Fletchers’ enema procedure to her, and to obtain her informed consent to it. The submissions which were made in relation to this matter have been overtaken by the very recent decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11. Had I found that the enema had been inserted into the wound I would have sought further submissions from the parties on this part of the case. As it is, since it would make no difference to the outcome (absolvitor), doing that here would not be a good use of court resources and would simply cause needless further expense. In those circumstances it seems to me the better course is that I do not express a view on the informed consent case.
[83] As already indicated, the pursuer has failed to prove that Nurse Bryson negligently inserted the enema into the wound. I accept that it was Nurse Bryson’s duty to assess the pursuer for herself, and that she breached that duty. In the circumstances she ought to have queried with Dr Palanimurugan whether the enema was appropriate given the pursuer’s recent surgery. However, I am satisfied that if she had duly performed that duty it is highly likely that Dr Palanimurugan would simply have confirmed that instruction (since he was well aware of the recent surgery when he authorised the enema).
Conclusion
[84] It would be unnatural not to sympathise with the pursuer. She undoubtedly suffered a fistula and its distressing consequences in the period following the surgery of 12 June 2008. However I am not satisfied that the loss and damage which she claims was caused or materially contributed to by negligence on the part of Dr Palanimurugan or Nurse Bryson.
Disposal
[85] I shall repel the pursuer’s first and second pleas-in-law, sustain the second and third pleas-in-law for the first defenders and the second and third pleas-in-law for the second defenders, and assoilzie the defenders. I shall reserve meantime all questions of expenses.