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Lessons from the recent cases of:

Surgical cases often provide difficulties for Claimants because it is not always clear how the alleged negligent injury occurred – nothing being noted at the time and the injury only becoming apparent post operatively. In the first two of these recent cases Claimants failed on breach because they could not prove the probable mechanism of injury, let alone that it was negligent. This is quite common in surgical cases because of the limited evidence as to the surgery itself - usually just a short operation note.

Claimants also often have difficulty in proving whether and how a breach has been causative of an injury. In Schembri v Marshall the Court of Appeal gives us a useful reminder of some important principles.

I set out in this article a summary of these cases, the principles they illustrate and some practical lessons to be learnt from them and my own experience in such cases over the last 25 years.

Saunders v Central Manchester University Hospitals NHS Foundation Trust
2018 EWHC 343 QB.

Before Mrs Justice Yip.

The Claimant was a 60 year old undergoing elective surgical reversal of an ileostomy. He was discharged well at 3 days post op but there was a deterioration and readmission 5 days post op. His large bowel was found to be entirely ischaemic and removed. The mechanism of ischaemia was not readily apparent.

The Claimant had a past medical history of myocardial infarction, ischaemic heart disease, he was a smoker, had high cholesterol and hypertension. The surgeon was a senior experienced consultant.

The Claimant’s case was that the mechanism of injury was ischaemia caused by the surgeon damaging the superior mesenteric artery by excessive traction or torsion through lack of proper care during the ileostomy reversal

The Defendant’s case was that the mechanism of injury was that it was caused by pre-existing atherosclerosis causing arterial thrombosis resulting in mesenteric infarction and was coincidental and otherwise unrelated to the surgery.

The following were of note –

The judge found the following -

Collyer v Mid Essex Hospital Services NHS Trust 2019 EWHC 3577 QB – December 2019 

HHJ Coe QC sitting as High Court Judge.

The Claimant underwent an elective laryngectomy – the removal of his larynx for recurrent cancer. He had received radiotherapy to the area the year before. He was diabetic. Post operatively the Claimant was found to have almost complete paralysis of his tongue. It was agreed that this was caused by injury to both hypoglossal nerves (also known as the 12th cranial nerve).

The effect of this is that the Claimant was completely unable to speak as he could not form words with his tongue. It also made it very difficult for the Claimant to swallow.

Bilateral near total permanent hypoglossal nerve palsy (as here) had not been previously reported as a complication of laryngectomy, whether negligently or not.

The Claimant argued that the injury was caused by negligent surgery on the basis that -

The Defendant argued that there was no negligence on the basis that -

The operation note recorded an uneventful and conventional laryngectomy. There was a factual dispute as to whether the tongue paralysis was apparent immediately post operatively or 3 days later.

The judge summarised the law -

The judge found -

Schembri v Marshall 2020 EWCA Civ 358 – March 2020

Lord Justices McCombe, Holroyde and Phillips.

The Defendant/Appellant GP admitted negligently failing to refer the deceased to hospital with a pulmonary embolism where she would have been treated with anticoagulants +/- clot busting drugs. She collapsed and died at home the next morning. The trial judge found that, with appropriate referral by the Defendant GP, she probably would have survived. The GP appealed the judge’s finding on causation.

The Court of Appeal approved the trial judge’s “common sense and pragmatic view” of “the evidence as a whole” in which he looked at both the statistics and factors specific to the Claimant. In dismissing the appeal they also remind us of the following cases/principles in proving causation in clin neg cases –

Practice points for surgical breach cases where the mechanism of injury is unclear -

Practice points for proving causation where the mechanism of injury is unclear-

  

This article first appeared in the March 2020 AvMA Lawyers Service Newsletter.