In an interesting application of the Bolam principles, Mr Justice Foskett concluded that there was no established body of opinion in 1998, which would have concluded that there was a clearly established temperature to which patients should be cooled for paediatric heart surgery during periods of circulatory arrest and that the experienced paediatric cardiac surgeon who carried out the operation, was entitled to use his own clinical judgment in choosing the temperature to which to cool for a particular operation.
Judgment was handed down on 24th March 2017 and the case is reported as: Sullivan v Guy’s and St Thomas’ NHS Foundation Trust 2017 EWHC 602 (QB)
The case concerned an infant with a severe congenital heart disorder who underwent a Hemi-Fontan procedure which was the first part of a two-part surgical procedure designed to create a route for venous blood to arrive in the lungs without going through the right side of the heart.
The surgical procedure involved a process of deep hypothermic arrest, which required the blood to be cooled to a low temperature, before the surgery was carried out under bypass without any blood flow. Unfortunately, whilst the surgery was itself entirely successful, the child failed to recover as expected after the operation and it soon became apparent that he had suffered serious brain damage.
Stephen Miller QC represented the NHS Trust (instructed by Penelope Radcliffe of Bevan Brittan). Philip Havers QC and Owain Thomas QC represented the estate of the child (instructed by Leigh Day). The case was heard by Mr Justice Foskett – a distinguished former member of Chambers.