Significant damages have been awarded to a patient in an out of court settlement after a surgical bag, known as a BERT Bag, was left inside his abdomen following surgery to remove his appendix in August 2021.

A man from Leicestershire has secured damages in an out of court settlement following a number of failures in his care after appendectomy surgery. The man, who wishes to remain anonymous, instructed specialist Clinical Negligence Solicitor Adam Wright at Setfords to investigate the standard of care he had received.

The patient presented to his GP in late August 2021 complaining of abdominal pain for 3 days. His temperature was raised, and he had pain in the right iliac fossa, classical signs of appendicitis. He was referred to the surgical assessment unit at the Leicester Royal Infirmary, part of University Hospitals of Leicester NHS Trust. He was admitted, and a diagnosis of appendicitis was confirmed by ultrasound and CT scans.

The following afternoon, he underwent surgery to remove the infected appendix. The appendix had already perforated, so surgery had to be converted from laparoscopic to an open incision. The Claimant was discharged home 8 days later.

A week later, the Claimant contacted his local urgent care centre as he had been waking up sweating, in extreme pain at the site of his surgery, and generally feeling very unwell. He was also noted to be constipated. He was advised to attend Accident & Emergency for urgent assessment and review.

The patient returned to the Leicester Royal Infirmary where he was attended to in the Gastrointestinal Surgery Ward. He was admitted with the working diagnosis being a likely post-operative infection. He underwent a CT scan the following day which reports that a section of inflamed appendix remained in-situ and that there was a large abscess in the abdomen.

The following day, a drain is inserted under ultrasound guidance to drain the abscess. At this time, his CRP, which is an infection marker, was significant raised. He was said to be improving and discharged home a few days later.

However, the patient re-presented to the Ward 5 days later feeling extremely unwell, fatigued, bed-bound, and experiencing sharp pains in his stomach. By this time he has also lost a significant amount of weight. He was reviewed and sent home with antibiotics and a plan to re-attend on Monday for a further ultrasound scan.

The patient re-attended on the Monday as planned, where he underwent his ultrasound scan. The report of the scan recommended that he have a CT scan, performed the same day. The CT scan confirmed that the presence of the abscess remained, albeit smaller than before, but also identified a foreign object within the abdomen.

The following day, he underwent exploratory surgery where the foreign object was removed, the remaining section of the appendix resected, adhesions divided and an abdominal washout performed. Post-operatively, the patient was informed that the foreign object removed was a surgical collection bag, referred to as a BERT Bag. He was advised that a full investigation into how this had happened would occur.

He was discharged from hospital several days later, in early October 2021, where his condition continued to improve, and he was able to return to work on a phased return in January 2022.

Adam Wright, a Senior Clinical Negligence Solicitor at Setfords, was then instructed to investigate the standard of care he had received, and the long-term risks arising because of these errors.

NHS England has created a policy on “Never Events,” which documents a range of mistakes which should never happen within the NHS. This includes retained foreign objects following surgery. It was immediately clear therefore that the retention of the BERT bag was a cause for concern, but there were also concerns about the failure to completely remove the appendix and the drainage attempt thereafter. Accordingly, the patient’s medical records were obtained, and expert evidence was obtained from an expert General Surgeon.

The expert opined that:-

• There was a breach of duty by the operating surgeon in failing to have removed the entire appendix at the initial appendicectomy surgery, in particular in failing to have identified and removed a 37mm segment of inflamed appendix.
• There was a breach of duty by the operating surgeon in failing to have identified and retrieved the BERT bag at the completion of the appendicectomy surgery.
• There was a breach of duty in discharging the Claimant following his surgery without having performed repeated blood tests and especially in circumstances where his blood test results following his operation were abnormal with grossly elevated WCC of 16.2 and CRP of 163. The Claimant’s blood tests should have been repeated prior to his discharge to ensure that they had returned to normal range and that he was safe for discharge.
• There was a breach of duty during the Claimant’s first re-admission to have recommended and performed ultrasound-guided drainage instead of performing surgery in circumstances where the CT scan clearly revealed and reported that there was retained appendix. There was no way therefore that a simple drain would be sufficient to control the sepsis caused by the persistence of the retained appendix. Surgery was indicated, and the failure to perform the same during this admission amounted to a breach of duty.
• Further, there was a breach of duty barely 72 hours after the placement of the drain, to have made the decision to remove it and to have discharged the Claimant. Again, where the CT scan had demonstrated retained appendix, surgery was indicated, and the Claimant should not have been discharged home.
• A formal Letter of Claim was submitted to the Trust, making these allegations and alleging that, in the absence of these failures in care, the Claimant would have undergone an uncomplicated procedure and made a full recovery within 2 to 4 weeks.

The Trust instructed NHS Resolution who served a formal Letter of Response admitting liability. The Trust accepted that they failed to remove 37mm of the appendix and left a BERT bag in the Claimant’s abdomen. They also admitted that the care afforded to the Claimant following his surgery fell below the acceptable standard.

Further expert evidence was then obtained from the expert General Surgeon and an expert Psychiatrist, so that the claim could be quantified and to assist settlement negotiations. The General Surgeon opined that the Claimant was now at an increased lifetime risk of bowel obstruction from adhesions, and hernia, because of the failures in care and the complications which followed. The expert Psychiatrist also opined that the Claimant had suffered an Adjustment Disorder, which is a recognised psychiatric condition, as a result of the negligence.

Following receipt of the expert evidence, the Parties engaged in settlement negotiations which resulted in an agreed sum of damages, equating to tens of thousands of pounds, in compensation to the patient for his pain and suffering, his associated financial losses, and the future lifetime risks he now faced.

Upon securing the settlement, the patient said “I can now put this awful episode in my life behind me. I was so unwell and at one time I honestly thought I was going to die. The mistakes are simple but the impact of them are profound and lifelong. I wouldn’t want to experience this again, and no amount of money will ever truly compensate me for how this has affected me. But I can put this behind me now and move on with my life, and hope that the Trust has learned from these mistakes. I hope this doesn’t happen again to anyone else. Adam and the team at Setfords were brilliant and immensely supportive. Thank you for your help at this horrible time.”