When I heard about the trial of David Sellu, the colorectal surgeon jailed for contributing to the death of man with faecal peritonitis, I sighed. Like many doctors, I had come to believe that private hospitals are great for stable and elective patients, but are not set up (with some exceptions) for those who become acutely unwell. Consultants are largely off site, junior support can be threadbare, and there are fewer facilities. It did not surprise me to hear that the patient had lain in his bed for 14 hours (from the time of Sellu’s first examination) waiting for an ‘urgent’ CT scan, and another 10 hours waiting for emergency urgent surgery. By this time sepsis had set in and it was too late.
David Sellu’s book ‘Did He Save Lives’ is his account of the case, and of his time in prison. A sense of injustice runs through it, and the reader comes away awed and a little afraid at the way our criminal justice system can take a man, drag him through hell and then turn around, brush him down and say ‘Sorry old chap, we got that one a bit wrong.’
It is a one-sided account, of course, and there are gaps which any forensically minded reader would like to see filled. It is also a prison memoir, with interesting details that only someone who has done time could know. We learn how to turn used teabags into a plug, the etiquette of bunk-bed prioritisation, and the way prisons incentivise good behaviour. Like other highly educated inmates who have written (from Oscar Wilde to Jonathan Aitken), he describes other prisoners like case histories. A civil man, Sellu had to live with daily profanity. He endured hours of daytime television, preferring David Attenborough programmes to the soaps or Homes Under the Hammer. He reflects on how his colorectal surgical career prepared him for the stench of his cellmates’ faeces, passed just yards away from his bunk behind a half-height door. His time behind bars is in no way glamorised.
So, what did happen in the BMI Clementine Churchill? To fill the gaps, I ended up reading transcripts of the original sentencing and the appeal judgment. It is tempting to ‘re-try’ the case in your own mind, but of course my, or any other reader’s opinion is worthless. We were not in court. Nevertheless, to understand how this happened it is helpful to understand the details.
Mr H developed abdominal pain 5 days after a knee replacement, just before he was due to be discharged. Sellu was asked by a colleague to assess the patient. He saw him after an evening clinic and was suspicious of something serious in the abdomen. There was the suggestion of gas under the diaphragm on an x-ray, a fairly sure sign that something had ruptured or perforated. Sellu requested blood tests and a CT scan. He marked the scan request as ‘urgent’, but did not push for it to be done overnight. He also asked the junior doctor covering the wards to start antibiotics, but did not document this in his written plan. The blood tests were not performed (though the young doctor later told Sellu the results were normal), and the antibiotics were not prescribed.
Next day the hospital worked through its routine CT scans before accommodating Mr H at 11.20AM, 14 hours after the request. It was reported to show a perforation, as expected. The book suggests there was simply gas in the abdomen, though later it is suggested (through the words of an expert witness), that gas had penetrated through to the region around the major blood vessels (‘retroperitoneal air and artery tracking’). An urgent operation was scheduled, but Sellu had to wait until routine lists afternoon had finished, and an available anaesthetist had to be secured. He did not exercise the rarely used option of breaking into the routine lists – a sure way to make your colleagues unhappy. Mr H’s condition was deteriorating, and his nurses were making phone calls and requesting reviews. The operation started at 10PM. Mr H was unstable, his blood pressure fell. Sellu found that his liver was irregular, in keeping with cirrhosis, though the CT scan had not shown this. He bled more than expected. After surgery Mr H was transferred to the ICU, but he died later in the day.
The hospital was quick to conduct an internal Root Cause Analysis (RCA). Sellu writes that this was ‘frank and hard-hitting in its criticism of many of the hospital’s procedures and personnel…’ Then, an external agency was commissioned by Duncan Empey, medical director of the hospital group. The investigators were asked ‘not only to look not only into the case of Mr H but to do a full trawl through all my work over the previous years…’. The so called Empey report was highly critical, though we do not read excerpts in this book.
The hospital referred Sellu to the GMC. In October 2010, Sellu attended a hearing run by the Medical Practitioners Tribunal Service. They found ‘no case to answer’, but planned to review the decision after the inquest, which was due to happen just a week later.
It was during the inquest (attended by 500 people, Sellu estimates, a number that is hard to believe) that the surgeon’s world fell apart. According to Sellu, a misunderstanding about when he saw the CT scan result led the coroner to suspect him of lying. During questioning the coroner said, “I am going to interrupt you.” and asked Sellu to leave to court. Sellu waited, confused. A manager from the private hospital blanked him in the corridor. Then Sellu’s barrister emerged to tell him,
“The coroner is going to refer this case to the police as he suspects a crime has been committed.”
“What crime, and by whom?” replied Sellu. He thought it might be the junior doctor, or the hospital managment. But it soon sunk in. It was he, Sellu. It was being alleged that he had committed manslaughter. It would be up to the police and the Crown Prosecution Service to decide.
Later came the police questioning, during which Sellu contradicted things that he had stated to coronoer, leading to an additional charge of perjury. Sellu writes, ‘I have since discovered it is best not to commit to an oral interview. Under the stress of the occasion, and unable to consult notes and previous records, a person is liable to make statements that could prove inaccurate.’
The trial began two years later.
Sellu is highly critical of the judge, who in his view (and in the view of the appeal court three years later) did not direct the jury properly. Judge Nicols, in his sentencing, concentrated on two points. Firstly, the antibiotic question:
Although you did make a record of other elements of your care plan for Mr Hughes in your medical notes, there is no reference to antibiotics. Overall, for whatever reason, I am sure that you omitted to give instructions to the RMO [junior doctor] at any stage to prescribe antibiotics for Mr Hughes.
He was in effect saying that Sellu had lied about asking for antibiotics to be given.
Secondly, he thought the management of Mr H was too ‘laid back’ from start to finish.
You wanted a CT scan of Mr Hughes’ abdomen. That was not unreasonable, but you did not make use of the facility, which was also available at the hospital, to have a scan like this done that same night. Instead you instructed it to be done the following morning with a predictable delay of about 12 hours. On the expert evidence called by the Crown which the jury must have accepted, that was simply far too laid back for someone with a suspected perforated bowel.
Sellu was found guilty (the jury voted 10 to 2) and was sentenced to two and half years in prison.
After reading the book I wanted to know more about why and how he was ultimately exonerated. The Court of Appeal judgement is long, making reference to legal precedents as you would expect, but it is interesting to read. In overturning the conviction judges Leveson, Irwin and Globe were critical of Judge Nicol’s handling of the expert witnesses and the jury. Two of the prosecution experts loaded their responses to the court with ‘assertions’; to me, they sound like moral judgements: “very bad practice”; “no reasonable surgeon”; “embarked on a bizarrely slow and laidback and inadequate treatment and diagnosis regime which if proposed by a candidate for a basic doctor’s examination would result in a fail”; “recklessness”; “grossly negligent”; “grossly incompetent”; “falling below the level of a reasonable practitioner on multiple occasions”.
The appeal judges said,
Some of them do provide a yardstick against which the jury could consider whether the criminal test had been met. Others are little more than assertion. How were the jury to assess these opinions on what were, ultimately, legal issues?
…there is nothing to suggest the experts provided any explanation as to the terminology of many of their opinions. Further, the jury was given no additional guidance by the judge other than that which we have cited from the summing-up as to expert evidence generally.
…The jury was left on its own to trawl through the differing descriptions, which were adduced in evidence essentially by leading questions, essentially asking whether the behaviour under discussion was or was not gross negligence.
…Furthermore, the judge did not repeat the important direction that what was gross negligence was a matter for them and not the experts.
In the circumstances, we do not believe that Mr Sellu had the benefit of sufficiently detailed directions to the jury in relation to the concept of gross negligence contained within the offence of gross negligence manslaughter.
Another issue was the trial judge’s handling of a question asked by the jury before they began deliberations:
“Two questions: one, could we please be reminded of what we must or are to be deliberating on (evidence)? Two, are we to be deliberating legalities or are to be judging as human beings, lay people??”
Reading this, and having sat on a jury in a (crown court) trial lasting 10 days myself, I couldn’t help thinking… they were lost! What does this strange question mean?
Judge Nicols directed them; the appeal judges were not happy with that direction. He did not, in the appeal court’s view, lay out a ‘route to verdict’.
What do I learn from this as a consultant?
David Sellu was a busy surgeon. He ran between his NHS and private hospitals, maintaining commitments on both sites with an energy that I, 25 years younger, can only admire. He dealt with correspondence at home through the evenings and worked weekends. He had seen 4500 patients at the BMI Clementine Churchill during his career there, and performed over 300 operations (the book says). He had a very healthy private practice, and presumably he had made a great deal of money from it. Perhaps, running from patient to patient, it was not possible to document everything as thoroughly as he would have wished, or to follow through personally on every detail.
Occasionally, patients deteriorate faster than you can possibly imagine. Sellu’s clinical impression of Mr H was that he probably had a bowel perforation, but that he was displaying no signs of peritonitis. He made plans, but did not push them. Mr H deteriorated. Looking back, that lack of urgency looked like negligence.
The investigators took the classic approach, looking from the end result backwards, rather than trying to see the situation from ‘within the tunnel’ i.e. asking themselves if the context, i.e. the clinical information and resources available at each time point, led to a reasonable decision. Nobody can predict the future. Nobody knew that Mr H had cirrhosis (a factor which contributed significantly to Mr H’s dearth, and accepted as such by the appeal court).
However hard we try to focus on systems, processes and safety nets, in the eyes of the law you, the consultant in charge, are responsible for the care that your patients receive. Blame coalesces around the name over the bed. It was Sellu who failed to negotiate a timely CT scan. It was he who chose not to interrupt the routine operating list schedule. It was in his power to transfer Mr H to the nearby NHS hospital. Reading this book, and remembering Sellu as a benign (perhaps even ‘diffident’, in his own word) presence at Ealing hospital, I wondered, did his manner play a role here?
Would a less ‘diffident’ surgeon have shown no hesitation in forcing through the CT scan, or breaking into the theatre list? Would a more aggressive surgeon have called up the medical director to complain about the delays, or, after Mr H had died, stormed up to the admin offices and made a scene? Perhaps such attempts to spread responsibility early on would have diverted the attention of the investigators and stopped the subsequent descent into hell.
Finally, Sellu considers the duty of candour, which became law in 2014. A senior doctor makes a mistake. A patient is injured, loses function or dies. The doctor apologises and is transparent about any failings in care. The organisation where he or she works commits to making changes, if required. The investigator’s report is shared with the victim, if they want to see it. There are improvements.
A senior judge makes a mistake in directing a jury or handling a witness. A man is found guilty, loses his career and a large chunk of his life. There is no apology to the victim. There is no evidence that the organisation where the judge works is committed to avoiding the same mistake in the future. We are not reassured that the same thing will not happen again tomorrow.