§ PUBLISHED JUDGMENT · 2023

Ward v Oxford University Hospitals NHS Foundation Trust

[2023] EWHC 2803 (KB)·High Court (King's Bench Division)·9 November 2023

Mr Ward's stomach was perforated during keyhole removal of a gastric band; the hole was not seen during the operation and was repaired the following morning after he deteriorated. The judge found the perforation was not visible at the time and so there was no negligent failure to identify and repair it.

Outcome

Claim failed

Sum stated in judgment

Not stated

Claim type

Surgical Errors

Decided

Liability decided at trial

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§ WHAT HAPPENED

The facts, in brief.

Defendant: Oxford University Hospitals NHS Foundation Trust (Churchill Hospital) · this trust’s claims data

Injury: Stomach perforated during laparoscopic gastric band removal, not identified until a second operation the next day

Specialty: Bariatric / upper GI surgery · England

§ WHAT THE COURT SAID

In the judgment’s own words.

“It follows that judgment must be entered in favour of the defendant.”

The money

Judgment for the defendant

§ WHY IT MATTERS

What this case shows.

A perforation missed during surgery is only negligent if there was visible evidence the surgeon should have seen. Post-operative pain that leads to timely re-operation may not give rise to a claim.

About surgical errors claims →

§ MORE SURGICAL ERRORS JUDGMENTS

Claim failed

Tarrant v Monkhouse

[2025] EWHC 2576 (KB)·2025·Liability decided at trial

After a sleeve gastrectomy the claimant had trouble swallowing; the surgeon performed a gastroscopy and balloon dilatation, after which the sleeve leaked. The judge found no breach of duty in the post-operative care or the dilatation and dismissed the claim despite the very serious consequences.

A bad outcome after a recognised complication is not enough; the claimant must show the treatment decision fell outside what a responsible body of surgeons would do. Sympathy for the patient does not change the legal test.

Claim failed

Julia Tosh v Vivek Gupta

[2025] EWHC 2025 (KB)·2025·Liability decided at trial

The claimant developed anal stenosis after a private haemorrhoidectomy and argued her haemorrhoids had been over-graded, non-surgical options were not discussed and the stenosis risk was not explained. The judge found the grading was correct, alternatives were discussed and the risk was disclosed on the consent form and in the information leaflet, so the claim was dismissed.

Documented consent, including a signed form and a written leaflet naming the specific complication, can be decisive in defeating a Montgomery consent claim.

Claimant succeeded

MJF v University Hospitals Birmingham NHS Foundation Trust

[2024] EWHC 3156 (KB)·2024·Liability decided at trial

A young woman with cerebral palsy had a PEG feeding tube inserted and was found unresponsive two days later with peritonitis and sepsis. The judge rejected the doctor's account of how the tube was fixed, found it was placed under too much tension, and entered judgment for the claimant.

Where a clinician's recollection is unreliable and contradicted by the physical evidence, the court can find a procedure was done negligently. Causation may still be limited where a pre-existing condition would have deteriorated anyway.

All surgical errors judgments →

Contains information licensed under the Open Justice - Licence v2.0. Judgments from Find Case Law, The National Archives. Summaries are ours; amounts only where printed in the judgment.

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