Update: clinical negligence

In three recent decisions, the High Court has considered the standard of care of a surgeon in the technical performance of surgery and in deciding whether a decision not to operate was acceptable.

Increased risk of injury

In the first of two cases concerning technical surgical performance, Brown v Scarborough & North East Yorkshire Healthcare NHS Trust [2009] EWHC 3103 (QB), HH Judge Thornton QC had to determine whether a Pfannenstiel incision for a hysterectomy, performed by a registrar in gynaecology, had exceeded the acceptable length for such an incision, such that the claimant had suffered damage to her left ilioinguinal nerve (IIN).

The registrar had performed an otherwise uncomplicated hysterectomy procedure, but left an incision on the claimant of 20cm in length. The incision was a symmetrical straight line with no curved ends. The claimant claimed that the incision was too long and did not have end curvatures, as it should have had. The defendant asserted that a straight 20cm incision was within the range of acceptable practice.

The registrar's consultant accepted that he would normally create an incision of 15 to 18cm in length. The registrar did not give evidence, either written or oral. The experts for the parties agreed that the length of the incision was a matter of judgment; that it should be of sufficient length to enable the procedure to be performed safely, but that the surgeon should confine the length so far as reasonably possible; and that the surgeon should avoid extending the incision beyond the ledge of the rectus sheath to avoid damaging the IIN.

Of the Pfannenstiel incision, Bonney's Gynaecological Surgery (10th edition) (2004) states: 'The incision should be approximately 12cm long, for a hysterectomy, shorter for more minor procedures'¦' and Te Linde's Operative Gynaecology (9th edition) (2003) states that the incision is 'usually 10 to 15cm long'.

The judge considered that the accepted starting point for the length of the incision was 15cm and that this should only be increased if certain situations were likely to arise. While it was accepted that a risk assessment should be undertaken to balance the length of incision required to avoid intra-operative risks or post-operative complications with the risk of harm that a long incision might cause, the judge considered that in this case there had been no articulated or logical reason to extend the length of the incision in the way it had been extended, and no such risk assessment had been carried out. Furthermore, no limiting curvature had been provided. The length of the incision had significantly increased the risk of IIN injury.

Therefore, applying the Bolitho gloss to the Bolam principle, the claimant had succeeded in proving breach of duty and causation.

Causing damage

In the second case, Laura May v Lancashire Teaching Hospitals NHS Trust [2009] EWHC 3175 (QB), Slade J considered the performance of an operation carried out by a consultant orthopaedic surgeon for the claimant's severe thoracic scoliosis of her spine. The operation involved improving the angle of the spine by a method using pedicle screws, followed by manipulation of the spine to achieve correction. However, immediately following the procedure, it was discovered that the claimant had become paraplegic from the level of T6 down. It was agreed between the parties that the claimant's dura had been pierced during the operation and also that her paraplegia had occurred during the procedure.

The judge had to consider, on balance: i) whether the claimant's paraplegia was a result of the misplaced insertion by the surgeon of a pedicle screw at T6 (the claimant's case); if so, ii) whether the surgeon was negligent in any material respect; and, if so, iii) whether such negligence had caused the claimant's paraplegia. The defendant contended that the likely cause of the damage was manipulation of the spine once all the metalwork of the pedicle screw system was in place. The claimant did not assert negligence in any material respect if the paraplegia was found to be the result of manipulation.

The judge held: i) the claimant had, on balance, established on the evidence that the damage to her spinal cord was caused by a pedicle screw penetrating the dura at T6 and compressing the cord, rather than by the manipulation; ii) the surgeon had been negligent in not using both lateral and anterior/posterior imaging during placement of the pedicle screw at T6 and the trust had been negligent in not providing the surgeon with spinal cord monitoring (which the surgeon would have used if it had been made available); and, iii) the two failures together had caused the claimant's paraplegia. The claimant, therefore, succeeded.

Appropriate action

The third surgical case concerns a spinal surgeon's decision to treat conservatively rather than operate. In Newman v (1) Maurice (2) Surrey & Sussex Healthcare NHS Trust [2010] EWHC 171 (QB), the claimant claimed damages from a consultant spinal surgeon relating to treatment of the claimant's infection.

The claimant was admitted under the care of the first defendant privately with a possible epidural abscess. An MRI confirmed this and demonstrated evidence of both pre and post-sacral infection, as well as a possible small abscess behind the sacrococcygeal junction (the site of the original injection thought to be the cause of the infection). The surgeon, while accepting that this was an extensive and serious infection, though not causing any significant neural compression, initially managed the claimant conservatively with intravenous antibiotics. He noted that the claimant had mild clinical features of cauda equina syndrome. He also arranged for an aspiration of the post-sacral abscess, which took place that evening and which drained a small amount (1ml) of 'foul smelling brown fluid'.

The following day, while the claimant clinically appeared a little better, a repeat MRI scan demonstrated that the infection had spread. Blood tests that day also confirmed increasing infection. The surgeon admitted the claimant to East Surrey Hospital under the NHS for excision and drainage of his sacrococcygeal infection. At operation, the surgeon found necrotic tissue in this region, which he drained and excised, though he chose not to drain the epidural abscess at the same time and left it '“ for a further five days. The claimant further deteriorated and was admitted to the intensive care unit three days later with systemic sepsis. He remained on intensive care for eight weeks and has been left with long-standing problems.

The claimant's primary case was that the surgeon should have excised and drained the whole of the infection, including the epidural abscess, at the time of the first aspiration and before the claimant became severely infected. This was because: first, there was evidence of neurological compromise with a risk of progression to paralysis; and, second, there was a risk of the development of severe infection, toxicity and multiorgan failure.

The claimant's secondary case was that more extensive surgery should have occurred at the time of the first operation, because the blood tests showed worsening infection and because there was evidence of necrotising fasciitis at operation.

In finding against the claimant, HH Judge Platts concluded: i) the claimant, as a matter of fact, had not been suffering from neurological deterioration due to neural compression such that earlier surgery had been indicated; and ii) the surgeon had to balance the not insignificant risks of surgery with the desire to remove infected tissue and a toxic load, which was a matter of clinical judgment.

The judge considered that the surgeon had considered both the neurological and medical risks and had acted upon them appropriately. While the judge accepted that the claimant's neurosurgical expert, Mr Todd, would have managed the claimant's case differently, as would many, that was not sufficient to establish breach of duty. In addition, while the judge did not need to decide causation, he indicated that earlier surgery would probably not have made any difference.

Non-delegable duty

The Court of Appeal in Farraj v (1) King's Healthcare NHS Trust (KCH) (2) Cytogenetic DNA Services Limited (CSL) [2009] EWCA Civ 1203 considered an appeal by KCH against a finding of negligence against them by Burnett J at trial. The case concerned a chorionic villus sample that was sent to KCH for testing for ß-thalassaemia major (BTM).

KCH had had to pass the sample on to CSL, an independent laboratory that would be able to identify and culture fetal cells present before returning the sample to KCH for testing. This happened: KCH tested the returned sample on receipt and found that it was negative for BTM. However, it was discovered soon after the claimants' baby had been born that he did have BTM.

The judge at trial had found both KCH and CSL liable in a 1/3:2/3 split on damages and a ½:½ split on costs: CSL for failing to communicate to KCH doubts they had about the validity of the sample and KCH for failing to enquire of CSL whether the sample provided had been sufficient for testing.

KCH appealed: i) the decision of their liability; ii) the split on damages; and, iii) the split on costs. The claimants cross-appealed, arguing that KCH was liable for the negligence of CSL (an independent sub-contractor) on the basis that KCH had a non-delegable duty.

The Court of Appeal held that, on the facts, there was a clear understanding between KCH and CSL that CSL would inform KCH if they had doubts about the validity of the sample and KCH was entitled to assume the sample was satisfactory unless CSL informed them to the contrary. CSL was, therefore, 100 per cent liable on all counts.However, the Court of Appeal also dismissed the cross-appeal. Dyson LJ noted that in the law of negligence the duty to take reasonable care may be discharged by entrusting the performance of a task to an apparently competent independent contractor. He considered that the concept of a non-delegable duty was a departure from the basic principles of liability in negligence, in that it substituted for the 'duty to take care' a more stringent duty, namely a 'duty to ensure that reasonable care is taken'. He acknowledged that hospitals owe a non-delegable duty of care where a 'special duty' exists, which is when the hospital undertakes 'the care, supervision and control of persons who, as patients, are in need of special care'. Such a duty would extend to tests carried out in the hospital because the carrying out of those tests is part of the treatment of the hospital's patient. However, he concluded that, in this instance, there was no reason to apply the more stringent duty, as there was no 'special' relationship between KCH and the claimants. On the facts of this case, the claimants were 'not being treated by KCH' but were simply having their tests analysed there. KCH,therefore, did not owe the claimants a non-delegable duty.

In agreeing, Sedley LJ contrasted the paradigm of healthcare provider and patient with the facts of the current case, the latter involving the provision of analytical and diagnostic laboratory services. In relation to the former, he considered that a non-delegable duty does indeed exist; however, in relation to the latter, 'there is no arguable principle of law which prevents the[ir] entire or partial delegation (absent some express prohibition) to a competent and reputable specialist'.