Friday, 4 December 2015

The Case of the Damaged Nerve

The Court of Appeal has given judgment in a clinical negligence case that concerned the use of inference to make a finding about a surgeon's standard of skill and care - O'Connor v Pennine [2015] EWCA Civ 1244.

Tracey O'Connor underwent uro-gynaecological surgery to repair a vesico-vaginal fistula. Following the operation she suffered femoral nerve dysfunction which the expert neurologists instructed by the parties agreed was due to some form of surgical trauma. She went on to develop permanent disability which was non-organic. She recovered substantial damages after trial.

The Claimant's case was that the damage had been caused during surgical dissection. The expert urological surgeons had agreed that there were two possible mechanisms of damage - by dissection, which would be negligent, and by use of deep retractors. They disagreed as to whether it would have been negligent for the surgeon to have caused femoral nerve damage by deep retraction. The Defendant sought to suggest a further possible mechanism of damage, namely through the administration of regional anaesthetic block, and had applied on the first day of trial to introduce a fresh expert to deal with that contention.

Application to Introduce A New Expert

The trial judge had refused that application. Permission to appeal was granted but the Court of Appeal termed that appeal "obviously misconceived". The circumstances of the Defendant's application had not been auspicious - it was made without notice on the first day of trial and after an unappealed refusal of permission by a District Judge a few months earlier. Jackson LJ said, "Following the civil justice reforms of 2013, that is simply not how we do things now.... I do not see how a decision to abort a clinical negligence trial on day 1 for the benefit of a dilatory defendant could possibly be justified." [53]

Inference and Res Ipsa Loquitur

The trial judge weighed all the evidence, reminded himself of the guidance of the Court of Appeal in Ratcliffe v Plymouth & Torbay HA [1998] PIQR P170 and of the Rhesa Shipping v Edmunds [1985] 1 WLR 948 ("The Popi M") trap and held that on the balance of probabilities the damage was caused during dissection and therefore was caused negligently.

The NHS Trust appealed against that finding. Jackson LJ giving judgment with which McCombe LJ and  Sir Colin Rimer agreed, referred not only to those two authorities but also to Thomas v Curley [2013] EWCA Civ 117 which I have discussed previously. In Rhesa the House of Lords condemned the adoption by the trial judge (Bingham J no less) of the Sherlock Holmes mantra that if all other possibilities are excluded, the remaining possibility, however unlikely, must be the truth. That reasoning process was invalid because there remained the legal test of whether the remaining possible explanation or cause was likely "on the balance of probabilities". A Court might well find that there one explanation is more probable than the others  put forward, but that it is still not the likely cause or explanation. More probable that the suggested alternatives is not the same as more probable than not.

Jackson LJ however held that:

"It is not an uncommon feature of litigation that several possible causes are suggested for a mishap which the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause. But the mere elimination of AA, B and C is not of itself sufficient. The court must also stand back and, looking at all the evidence, consider whether on the balance of probabilities, D is proved to be the cause." [64].

He noted that the notion of damage by deep retractor had been discounted by both parties by the close of evidence and he held that the trial judge had been entirely justified in dismissing the defendant's suggestion of damage by the administration of anaesthesia. Accordingly the "fact that the defendant had not proffered any plausible explanation for the claimant's injury consistent with the exercise of due care did not convert the case into one of res ipsa loquitur. Nor did it reverse the burden of proof. Nevertheless this was a material factor which the judge was entitled to take into account." [84]

This is very useful guidance for clinical negligence cases where the patient cannot adduce direct evidence of the negligence cause of his or her injury, for example because they were under general anaesthetic and the surgeon did not notice that anything had gone awry during the operation. The lack of a plausible explanation which is consistent with no negligence does not prove the case of itself, but it is relevant to the court's task of determining the cause on the balance of probabilities. Defendants must not be allowed to characterise a Claimant's case as one of Shorlock Holmes/Popi M reasoning or of res ipsa loquitur simply because the Claimant is alleging that all non-negligent explanations of an injury are implausible or unlikely.  That does not prove the case, but it is relevant. In some cases it will be highly relevant. Of course, as in this case, the court has to make inferences from all the circumstances, but that is not the same as adopting the doctrine of res ipsa loquitur.

Drawings and Photographs

Jackson LJ humourously teases my opponent at paragraph 44 of the judgment. He crticises the presentation of the case, complaining about the lack of drawings or photographs to show the relevant internal anatomy. To be fair photographs would not have assisted, and there were some technical drawings, albeit not very clear ones. Jackson LJ says that Mr Feeny "valiantly did his best by waving a finger around in the air to show us what was what." Taking Jackson LJ's plea a little further, there is no doubt that we could, at clinical negligence trials, make more use of models and technical drawings, perhaps even 3D modelling, to explain a case. I am sure (NOT) that costs budgeting orders will be increased to provide funding accordingly.

I appeared for the the Claimant at trial and on the appeal, instructed by Mealla Logue of McCool Patterson Hemsi solicitors.

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