With the advancements made in medical technology and technique every day, we are now seeing claims for clinical negligence related to highly complex surgery, often conducted in small operative fields, involving the most delicate of human anatomy. For the claims manager and their legal team, this presents a clear challenge when trying to understand what has happened and what precisely is alleged to have gone wrong.
Recent trial success
We recently defended a case to trial involving a right carotid endarterectomy - surgery to unblock a carotid artery (one of the main blood vessels supplying the head and neck) - which had been performed by an eminent consultant vascular surgeon.
The surgeon explained how, before the blockage (plaque) could be removed from the region of the artery, it was necessary to create a clear window so that the artery could be visualised. This involved dissecting the jugular vein from the muscle and holding it in the anterior position, and retracting the sternocleidomastoid muscle (SCM muscle) backwards, with the assistance of a ‘retractor’ (see sample visual here).
Top tip: Diagrams are essential to understanding any surgical procedure – for you and the judge.
Several weeks later the claimant reported ‘drooping’ of the right shoulder. Whilst the precise mechanism for her injury was unclear, it was alleged that, during surgery, the spinal accessory nerve (SAN), which innervates the shoulder muscles (the Trapezius and the SCM muscles) must have been severely damaged. The claimant held that the mere occurrence of such an injury was indicative of negligence (‘res ipsa loquitur’ i.e. ‘the thing speaks for itself’).
The matter was heard in February 2014 in the Liverpool County Court before His Honour Judge Trigger, who considered a number of issues before finding for the Defendant:
(i) The expertise of the surgeon and the content of the medical records
He was satisfied that the surgeon was highly skilled and that the operation had proceeded uneventfully (there being no indication in the operative note that any difficulties had been encountered).
(ii) The location of the SAN
Our vascular expert gave evidence that the SAN is not in the operative field and so he simply could not imagine how a competent Surgeon could possibly damage the nerve.
(i) Lack of evidence of weakness of the SCM muscle
There was no evidence that the SCM muscle had been weak at any time. Our expert maintained that weakness would have been expected had the injury occurred intra operatively, given the relevant anatomy (as the part of the SAN which would have been damaged at the operative level, innervates the SCM).
Top tip: The plates in Gray’s Anatomy are the most accurate – clearly labelling the relevant anatomy and the surrounding structures.
(ii) Post-operative ’normal’ testing of the SAN and the delayed onset of the claimant’s shoulder symptoms
Post-operative testing of cranial nerve function showed no evidence of any weakness affecting the SAN. Further, during cross examination, the claimant conceded that her shoulder pain only developed six to seven days after the operation. Our experts did not consider the test results and the delayed on-set of symptoms to be consistent with a direct intraoperative injury to the nerve.
(iii) Likely cause of the injury
The claimant’s expert gave a whole list of potential explanations for the injury, but favoured there having been an injury caused by over-forceful retraction. Our expert disagreed, explaining how it would have taken a ’considerable yank’, to have caused the resultant damage to the nerve fibres.
(iv) Whether there was a non-negligent explanation
The parties’ neurology experts considered the possibility that the claimant’s symptoms could be explained by idiopathic neuritis (an inflammatory, auto immune response which would be considered non-negligent). They agreed that it was a rare condition, but reported in the literature and therefore “possible”.
Top tip: Ask clinicians and experts to locate supportive literature at an early stage, which can be disclosed to support your defence.
The judge held that, as required by the maxim ‘res ipsa loquitur’, the claimant had not established the position on the balance of probabilities. The defendant has rebutted the presumption, by giving evidence that it had exercised all reasonable care and skill and in showing that the anatomy in question and the claimant’s reported symptoms were inconsistent with a direct intra operative injury to the nerve. He did not consider it necessary to find (as a matter of fact) that the claimant suffered from idiopathic neuritis, but if required he would have preferred our expert’s view that this was the likely cause of her symptoms.