Shovelton v Central Manchester University Hospital NHS Foundation Trust
In November 2007 the Claimant underwent a carotid endarterectomy intended to lessen the risk of suffering a stroke. Unfortunately, while the operation was a success in that the Claimant avoided having a stroke, the Claimant suffered complications from the surgery. The Claimant was left with a weakened and painful left shoulder.
All parties agreed that this was a complex operation that carried with it the risk of complications. The Defendant argued that the damage suffered by the Claimant were entirely the result of the operation’s natural complications. The Claimant argued that the Defendant had been negligent in performing the operation which caused damage above and beyond the natural complications of the surgery. The Claimant alleged that Mr Serracino-Inglott, the surgeon who performed the operation, damaged the three nerves in the brachial plexus.
In performing the operation, Mr Serracino-Inglott put a sandbag under the Claimant’s shoulders and placed her head within a gel headset and then turned her head to the right thereby exposing the left side of the neck where the incision was made. A carotid endarterectomy requires the moving of the jugular vein by means of a retractor which can be done in one of two ways, either the anterior approach or the retro jugular approach. The operation was carried out under the retro jugular approach. Mr Serracino-Inglott favoured a longer incision to gain access to the tissues beneath the skin; his explanation for this was that it provided a clearer view of the site where the bypass was necessary and, although it carried an element of risk, that risk was outweighed by greater vision.
The Claimant’s allegations of negligence were twofold: that the Defendant failed to position the Claimant on the operating table in a manner that ensured her safety, and specifically so as to prevent any injury to the brachial plexus by stretching or traction; and that excessive/sustained traction was applied, hyperextended the Claimant’s head and neck during surgery and so stretched the brachial plexus as to cause significant and permanent damage to the left long thoracic nerve, the suprascapular nerve and the axillary nerve.
It was agreed that the accessory nerve was damaged in the course of the operation and that it was not damaged negligently. It was also agreed by everyone, including Mr Serracino-Inglott, that were the three brachial nerves to have been damaged this would have been the consequence of negligence and that the negligence would be causing or allowing the nerves to be stretched or crushed. The mechanism of that negligence is either mal-positioning on the table or use of undue traction.
The judge concluded on the evidence that the Claimant’s head had not been placed incorrectly on the table and that great care was afforded to her during the course of the surgery. A wealth of expert evidence was heard in order to determine whether the brachial plexus was in fact damaged and whether the Claimant’s symptoms were the result of damage to the brachial plexus or the accessory nerve. Having heard the expert evidence, the judge concluded that the operation was carried out with the care and attention required and that the harm suffered was not the consequence of damage to the brachial plexus but was the result of damage to the accessory nerve. Given that all parties agreed that this was a natural complication of the surgery the Defendant was not liable in negligence.
PE v Royal Liverpool University Hospital 2014 (unreported) Liverpool CC HHJ Trigger
The Claimant in this case was born in 1944. In 2006 she began to suffer from amaurosis fugax which is a temporary loss of vision. In May 2007 she was assessed at the Walton Centre for Neurology and Neurosurgery and thereafter referred to an experienced surgeon at the Defendant Trust.
The Claimant was seen by an SHO on the 31st May 2007 who made the correct diagnosis of her condition and she was subsequently advised to undergo a right carotid endarterectomy. There was a fear that if the Claimant was left untreated she would be at considerable risk of suffering a fatal stroke.
The operation took place on the 18th June 2007 and the principal surgeon was Professor Brennan. Professor Brennan was an experienced surgeon who was well used to performing the operation in question. On the occasion of the operation Professor Brennan was supervising Mr Thavarajan who was training in vascular surgery.
The judge found that Mr Thavarajan carried out certain aspects of the surgery including the initial incision but that he was supervised at all times during this process. It was stated in evidence that there were two principal means of carrying out the operation: the anterior approach; and the retro jugular approach. Professor Brennan favoured the retro jugular approach and this was the means by which the Claimant’s operation was carried out.
The operation involves the removal of plaque which is expected to be found in the region of the bifurcation of the carotid artery. The judge found that Professor Brennan undertook this part of the operation as it was the most delicate part of the procedure. In doing this it is necessary to ensure that there is a clear window so that the artery can be seen. This involves dissecting the jugular vein from the muscle and holding it in the anterior position. In addition the sternocleidomastoid muscle (SCM) has to be retracted backwards in this operation. Retraction involves using an instrument that is similar to a ratchet designed to hold the muscles to one side thereby allowing access to the artery. The judge found that the operation took one hour and forty-five minutes and that the retractor was used for up to one hour.
Both Professor Brennan and Mr Thavarajan gave evidence that the spinal accessory nerve (SAN) is not in the operative field, this was supported by the Claimant’s expert (Professor Bradbury). Professor Bradbury confirmed that on occasion he had seen the SAN whilst performing this procedure, particularly when utilising the retro jugular approach and felt that it is potentially in the operative field where there is a particularly high incision of the skin. His evidence was that the incision in this particular case was high.
Post operative the Claimant complained of a drooping right eyelid. Tests were carried out to assess the cranial nerves including the SAN. It was accepted by the court that these tests were carried out diligently and in accordance with the training received.
Upon discharge the Claimant complained of pain in her right shoulder. The Claimant was examined and found to have a right SAN injury. The Claimant was referred by his GP to Professor Brennan who, after consultation, accepted that the Claimant had suffered an inter-operative injury to the SAN. Following this the Claimant underwent reconstructive surgery, at the time Professor Brennan commented to colleagues that the injury was unusual as the SAN is not near the operative field but that it must have been injured during the operation as her symptoms commenced after its completion.
The central question that court was required to address was whether the care provided was below that expected by a responsible body of vascular surgeons. Professor Bradbury took the view that the use of the retro jugular approach likely led to more force being applied to the SAN during retraction. In contrast the Defendant’s expert, Professor Brearley, said that excessive retraction would not have been necessary because of the Claimant’s slim build and that considerable force would have been necessary to cause the damage to the nerves complained of.
The experts considered the possibility that the Claimant’s symptoms could be explained by idiopathic neuritis. Dr Doran, consultant neurologist, for the Claimant said this was not the case as the Claimant’s symptoms began after the surgery and that the pain was not sufficiently severe. It was accepted that the normal course for idiopathic neuritis is considerable pain for a number of weeks, followed by muscle atrophy and musculoskeletal pain. Dr Doran did not believe the pain described by the Claimant followed this pattern. Professor Venables for the Defendant took the view that the Claimant’s nerve dysfunction was not caused intra-operatively and that it was idiopathic neuritis. On balance he felt that the cause of the post-operative problems, was inflammation of the nerve triggered by the fact of the operation, but not as a result of any negligent treatment.
In reaching his decision HHJ Trigger felt that the medical experts were all doing their best to explain the outcome and that the human body is not a robot. The judge found that the Claimant’s symptoms were inconsistent with direct intra-operative injury to the nerve and, therefore, the allegation of negligence was not successful.
These were two cases both involving damage to the spinal accessory nerve during a carotid endarterectomy. In both cases the essential allegation was excessive traction during surgery. The two cases are slightly different but ultimately reach the same decision, namely that negligence played no role and that the damage suffered was a complication of the surgery. Shovelton involved the allegation that in addition to the spinal accessory nerve there was damage to the brachial plexus, caused by excessive traction, and that this was the consequence of negligence. The court was asked to conclude whether such damage had in fact occurred. In PE the question was whether the traction had caused the damage or whether it has inflamed the nerve which triggered the complication.
The fact that negligence played no part is illustrative of the unpredictable nature of the human body.
As is obvious, no two individuals are the same and the courts have sought to emphasise that they should not be over zealous in finding negligence where medical evidence presents no likely explanation. The approach is summed up in the classical reference to Aeschylus by Brooke LJ in Ratcliffe v Plymouth & Torbay Health Authority  PIQR 170 at page 176:
“In my judgment the judge was entitled to reach this conclusion on the evidence before him. It was clear that the very experienced medical witnesses were doing their best to explain an untoward event which was on the frontiers of medical understanding. The human body is not a man-made engine. It is possible that a man’s body contains hidden weaknesses, particularly after nearly 50 years of life, which there has been no previous reason to identify. Medical science is not all-knowing. The Greek tragedian Aeschylus addressed the unforeseen predicaments of human frailty in terms of the sport of the gods. In a modern scientific age, the wisest of experts will sometimes have to say: “I simply do not know what happened.” The courts would be doing the practice of medicine a considerable disservice if in such a case, because a patient has suffered a grievous and unexpected outturn from a visit to hospital, a careful doctor is ordered to pay him compensation as if he had been negligent in the care he afforded to his patient. I will therefore turn now to that part of the case which was concerned with the evidence of what happened when the spinal injection was administered.”
This approach is not just limited to the human body and has received endorsement at the highest level (with an altogether more modern literary reference) in Rhesa Shipping Co SA v Edmunds (The Popi M)  1 WLR 948:
“My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “How often have I said to You that, when You have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.” (per Lord Brandon at page 955)
At first glance both PE and Shovelton may appear to be cases of res ipsa loquitur, however a closer inspection reveals that to be misleading. The starting point of res ipsa is that the event is usually caused by negligence but where the event is known to occur without apparent explanation such a presumption cannot arise. In practical terms the situation was helpfully summed up by Hobhouse LJ in Ratcliffe when he stated, “where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted” (at page 177).
There is a tendency to look for negligence in situations where an outcome is hard to explain. Judges usually start by expressing their sympathy towards the claimant and in that vein feel compelled to find negligence. However, the fact that experts are straining to explain why a consequence materialises bears logical force even if unpopular to the claimant. A judge should not quite pronounce the matter as elementary but remember the limits of medical science.