Tracey O'connor v The Pennine Acute Hospitals Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice McCombe,Sir Colin Rimer |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1244 |
| Docket Number | Case No: B3/2013/3655 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2015 |
[2015] EWCA Civ 1244
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
MR RECORDER HUNTER QC
9OL01101
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice McCombe
and
Sir Colin Rimer
Case No: B3/2013/3655
Mr Nigel Poole QC (instructed by MPH Solicitors) for the Claimant/Respondent
Mr Charles Feeny (instructed by Weightmans LLP) for the Defendant/Appellant
Hearing date: Tuesday 10 th November 2015
This judgment is in seven parts, namely:
| Part 1. Introduction | Paragraphs 2 to 6 |
| Part 2. The facts | Paragraphs 7 to 16 |
| Part 3. The present proceedings | Paragraphs 17 to 41 |
| Part 4. The appeal to the Court of Appeal | Paragraphs 42 to 47 |
| Part 5. Did the judge err in refusing to allow additional expert evidence? | Paragraphs 48 to 54 |
| Part 6. Did the judge err in holding that the surgeon injured the claimant's femoral nerve during dissection? | Paragraphs 55 to 87 |
| Part 7. Executive summary and conclusion | Paragraphs 88 to 92 |
This is an appeal by an NHS Trust against a finding that its surgeon negligently caused injury to the claimant's left femoral nerve during the course of an abdominal operation. The central issues in this appeal are whether there was an evidential basis for that decision and whether the trial judge drew impermissible inferences.
The problems arising in this case are not unique. A patient who sustains injury while under general anaesthetic cannot give evidence about what actually happened and often cannot call any factual witnesses to support his/her case. The court is therefore reliant upon the defendant's factual evidence, which it needs to examine both critically and fairly. The court also of course has the benefit of expert evidence, but none of the experts will have first hand knowledge of what happened. There may occasionally be a video recording of the operation, but I can only recall dealing with one such case (when I was in practice at the Bar).
The claimant in the present case and respondent in the Court of Appeal is Mrs Tracey O'Connor. The defendant at trial and appellant in this court is The Pennine Acute Hospitals NHS Trust. The defendant is responsible for the Royal Oldham Hospital in Oldham. The trial judge was Mr Recorder Hunter QC, to whom I shall refer as "the judge".
The following technical terms require explanation:
• Vesicovaginal Fistula ("VVF") is an abnormal epithelial lined tract that connects the bladder to the vagina. A patient who develops a VVF will suffer from incontinence of urine into the vagina.
• A Turner-Warwick abdominal ring retractor is a device used to retract the edges of the incision when operating on the abdomen or pelvis during urological surgery. It is a metal ring with serrated teeth which is placed around the incision on the abdomen. Blades are inserted to hold the edges of the incision open and hooked over the outside of the ring to pull open the wound into the abdominal cavity. Both deep and shallow blades are available to the surgeon.
• The femoral nerve runs from the lower spine through the psoas muscle to the thigh. The femoral nerve controls some of the leg muscles and facilitates some of the sensation in the leg.
After these introductory remarks, I must now turn to the facts.
The claimant was born on the 3 rd May 1965. On the 18 th July 2005 she underwent a hysterectomy at the Royal Oldham Hospital. An unfortunate, but non-negligent consequence of that procedure was that the claimant developed a VVF. Accordingly she required a further operation in order to repair the VVF.
On 26 th September 2005 Mr Neeraz Sharma, a consultant urologist at the Royal Oldham Hospital, operated on the claimant to repair the VVF. Dr Jonathan Kenworthy, a consultant anaesthetist at the Royal Oldham Hospital, anaesthetised the claimant during the operation.
Mr Sharma began by cutting open the abdomen, using the same semi-circular incision that had been cut for the purpose of the hysterectomy. He then placed a Turner-Warwick abdominal ring retractor on the surface of the abdomen in order to hold open the abdominal wall. Mr Sharma used the retractor in a somewhat unorthodox way, but nothing now turns on that aspect.
In order to repair the VVF Mr Sharma first needed to move the sigmoid colon out of the way. This involved dissecting the colon from the pelvic wall. It also involved dissecting the colon from the vaginal side of the fistula.
The crucial section of Mr Sharma's operation note (which the judge held to be an accurate record) reads as follows:
"The sigmoid colon was badly stuck to the vaginal side of the fistula.
Dissected very slowly free small seromuscular tear oversewn in 2 layers.
Then the fistula was excised and the vagina dissected off the backwall of the bladder."
Mr Sharma duly completed the operation and the claimant was taken back to her ward. When the claimant awoke from the anaesthetic she found that her left leg was numb and there was a loss of motor function. When later some sensation returned, the leg was painful.
Subsequent tests revealed that the claimant had sustained injury to the left femoral nerve. In a report dated 21 st October 2005 Dr Elsayed, a consultant neurologist employed by the defendant, set out the results of his testing and reached the following conclusions:
" Opinion
These findings are consistent with markedly severe left femoral neuropathy which is axon loss in nature; there are no changes of reinnervation in the affected muscles examined at this stage."
On 24 th January 2006 the claimant attended Mr Sharma's out-patient clinic at Royal Oldham Hospital. Mr Sharma checked that the VVF had healed and that the bladder function was normal. He then discussed the problems with the claimant's left leg. Following that consultation he sent a letter to the claimant's general practitioner, which included the following passage:
"I was pleased to note from her that she is now not incontinent, her bladder function is entirely normal and she has no leakages what so ever, clearly suggesting that the vesicovaginal fistula has healed as I had expected it to. However the only problem she now has is this pain in her left anterior leg going down to her ankle and a difficulty in hip flexion. Nerve conduction studies show that it is a femoral nerve neuropathy on the left side and what puzzled me was why it had come to pass. We know that with lithotomy position you can get femoral nerve entrapment injuries, but her lithotomy was only for a cystoscopy and bilateral retrograde which wouldn't have taken any more than 15 minutes. The only other thing was that her sigmoid colon was badly stuck to the vaginal side of the fistula and required a very slow painstaking dissection and I wonder whether that was the area entrapped which could have been the site of a presumed injury.
….
I have obviously apologised to Mrs O'Connor and her family that this has come to pass and I couldn't think of any logical explanation which would explain it accept for these adhesions of the sigmoid to the vagina, which we had to peel away to get to the fistula."
Over time the damage to the femoral nerve resolved. Unfortunately the claimant continued to have discomfort and difficulty in walking. This was due to functional overlay and the triggering of a pre-existing psychiatric condition.
The claimant maintained that Mr Sharma had caused the nerve damage by his negligent conduct of the operation and that the defendant was liable in damages. The defendant rejected that claim. Accordingly the claimant commenced the present proceedings.
By a claim form issued in the Oldham County Court on 31 st March 2009 the claimant claimed damages for injury and loss resulting from the defendant's negligence. In her claim form the claimant alleged that negligent conduct of the operation on 26 th September 2005 had caused serious injury to her femoral nerve. The defendant served a defence denying negligence, damage and causation.
Both parties proceeded to prepare their witness statements. On the defendant's side Mr Sharma prepared a statement setting out his recollection of events. Dr Kenworthy prepared a statement identifying the general and local anaesthetics which he had used. He asserted that these could not have caused any femoral nerve damage.
Both parties instructed expert witnesses to deal with liability and quantum. In relation to liability the experts were in the following disciplines: neurology, urological surgery and pain management. After exchange of reports the three pairs of experts met to prepare joint statements for the assistance of the court.
The neurology experts were Professor Chadwick for the claimant and Dr Sambrook for the defendant. They prepared a joint statement dated 22 nd/23 rd September 2011. This recorded that the claimant had suffered damage to the left femoral nerve, which had subsequently improved. In relation to causation of the nerve injury Professor Chadwick and Dr Sambrook wrote:
"We agree that some form of surgical trauma would be most likely."
The urological experts were Professor Chapple for the claimant and Mr Desmond for the defendant. They prepared a joint statement dated 31 st October/4 th November 2011. In paragraph 2 they stated:
"We agree that there appears to be a causal link between the surgery and the development of the neural dysfunction. It is reported that such dysfunction can occur following the pressure from deep lateral blades of a...
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