§ PUBLISHED JUDGMENT · 2020

Pepper v Royal Free London NHS Foundation Trust

[2020] EWHC 310 (QB)·High Court (Queen's Bench Division)·25 February 2020

Ms Pepper argued she had only agreed to a Whipple's operation if an intra-operative biopsy proved cancer, and the biopsy was negative. The judge found she had consented to surgery if the biopsy was positive or the pancreas looked suspicious, that intra-operative biopsies are known to be unreliable, and dismissed the claim.

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: Royal Free London NHS Foundation Trust · this trust’s claims data

Injury: Whipple's procedure (pancreaticoduodenectomy) performed for suspected cancer that histology showed was not present

Specialty: Hepatobiliary / pancreatic surgery · England

§ WHAT THE COURT SAID

In the judgment’s own words.

“It thus follows that for the reasons set out above I am satisfied that there was no breach of duty by Professor Malagò and that any injury or loss was not caused by any such breach of duty, as alleged or at all, and that the Claimant’s claim should be, and is, dismissed.”

The money

Claim dismissed

§ WHY IT MATTERS

What this case shows.

Consent disputes turn on what was actually agreed before surgery, and courts give weight to contemporaneous notes and what a reasonable patient would have decided. A negative result on an unreliable test does not by itself make surgery negligent.

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.

This guide is general information about the law in England and Wales, not legal advice about your case. ClaimGavel is run by Costart Projects Ltd on behalf of Tomlin & Partners, a specialist medical negligence firm regulated by the SRA. The free assessment on this page is an AI overview to show you roughly where you stand; a solicitor confirms the position in a free, no-obligation conversation.