A heart surgeon who has not returned to work since five of his patients died after becoming infected with an antibiotic resistant bug during valve replacements has lost a High Court case against his employer.
Consultant John Chen Yui Lu claimed that Nottingham University Hospitals Trust had breached his contract and he asked for an order that he was entitled to return to full surgical practice promptly and to receive compensation.
The Trust denied any breach and said that the programme devised to enable him to resume work was appropriate in the “unique and challenging” circumstances of the outbreak.
On Thursday, Mr Justice Lewis agreed with the trust and resolved issues which clear the way for discussions between the two sides aimed at getting Mr Lu back to work.
Of the 28 patients operated on by Mr Lu between December 2008 and July 2009 in the Trent Cardiac Centre, 11 became infected with a condition called prosthetic valve endocarditis (PVE) and five died.
This was linked to his “unwitting colonisation” by an antibiotic resistant strain of staphylococcus epidermidis, a generally harmless bacterium found on the skin of most people which can cause serious infection if it attaches to a surgical implant such as a heart valve.
In July 2009, Mr Lu was informed of the possible cluster of PVE cases in his patients and decided to cease performing valve surgery with immediate effect. From October 2009, he performed no surgery of any kind while an investigation was ongoing.
The subsequent report found no evidence of negligence or shortcomings in his surgical practice and recommended he should undertake a phased return.
In his ruling, given in London, the judge said the approach of the trust to the re-entry programme proposed in September 2013 was appropriate in terms of the aims, the description of the relevant competencies necessary for cardiac surgery and arrangements for assessment, and did not involve any breach of contract.
“In particular, the trust did not agree or approve the re-entry programme proposed by Mr Lu in September 2012. The trust has not unreasonably delayed the return of Mr Lu to surgical duties and the fact that there has been considerable time taken in seeking to achieve a satisfactory return to surgical duties by Mr Lu does not involve any breach of any contractual term.”
Concluding that the relevant procedures had been followed “correctly and fairly”, he added that steps taken in relation to a proposed communication strategy to inform the public and others of Mr Lu’s return were appropriate and did not involve any breach of contract.