TOUCHING A NERVE – CLINICAL NEGLIGENCE: Malcolm Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QBD)

PI_Ruwena_KhanRuwena Khan

A surgeon had divided a patient’s ulnar digital nerve during an operation and he had been negligent in failing to recognise that fact and to consider repairing it. It was not established that the patient’s palmar cutaneous nerve had been divided in a later operation. Judgment in part for the Claimant (Stewart J).

 Judgment

The Facts

The Claimant sought damages following alleged negligent operations performed on him by the defendant NHS trust.

The Claimant suffered from Dupuytren’s contracture.  Dupurtren’s contracture is a hand deformity that develops slowly, usually over years. Knots of tissue form under the skin — eventually forming a thick cord that can pull one or more of the fingers into a bent position. The Claimant’s contracture involved the little and ring fingers of his left hand and he had undergone three operations at the Defendant’s hospital. He claimed that the hospital had been negligent in relation to the first and second operations resulting in injury, loss and damage.

The Claimant alleged that the ulnar digital nerve (UDN) had been divided during the first operation and that the palmar cutaneous nerve (PCN) had been divided during the second operation, as a result of which he was experiencing continuing symptoms. The surgeons who carried out the operations denied that the nerves had been divided.

 

The Issues

  • The experts agreed that it was not necessarily negligent to divide the ulnar digital nerve (‘the UDN’), but it would be negligent to fail to recognise that it had been divided and to fail to consider repairing it. If a repair had been attempted then it would probably have been successful such that a significant number of the Claimant’s continuing symptoms would not be present.
  • The experts also disagreed as to whether the palmar cutaneous nerve (‘the PCN’) had been divided, but agreed that if it had been that would have been negligent.
  • The ISSUES were:

(i)            whether the UDN was divided in the first operation;

(ii)           whether the PCN was divided in the second operation.

Expert Evidence

Both experts in this case were noted by Mr Justice Stewart as being “eminent”. The Claimant’s expert, Mr Shewring (‘S’), was the President of the British Society for Surgery of the Hand and the Defendant’s expert, Mr Milner (‘M’) was a past Secretary of that Society. However, evidence of one of the experts had to be preferred over the other and a full analysis was made of all the evidence produced before the court.

  • S found that there was a complete absence of sweating over the palmar aspect of the ulnar half of the Claimant’s ring finger; the loss of sweating was indicative of sympathetic dernervation following peripheral nerve injury.
  • M found that the Claimant’s ring finger was shiny and had less bulk than the opposite ring finger, which would be consistent with neurogenic changes. However, M accepted that shininess was consistent with the digit not sweating.
  • Two-point discrimination and filament tests administered to the Claimant produced positive results.
  • There was a dispute between M and S as to whether there was a positive Tinel test (T test) providing an accurate locator of a neuroma following a divided nerve.
  • S’s opinion was that there was a positive T test.

The Court’s Decision: UDN

On the balance of probabilities it was found that the Claimant had proven that the UDN was divided.

The main reasons for this finding were:

(i) The lack of sweating.

(ii) Mr Milner’s positive recording of neurogenic changes.

(iii)    The positive Tinel’s test.

The Claimant was an unreliable historian, but the finding as to the absence of sweating and the neurogenic changes were not matters based on his reliability as a historian.  It was not right to disregard the finding that S had positively seen beads of sweat on the radial aspect of the Claimant’s ring finger and an absence of sweat on the ulnar aspect. That specific finding was very strong evidence of the UDN having been divided. The importance of M’s finding that the Claimant’s finger had a spindly appearance was that it supported the absence of sweating findings and it was further strongly persuasive evidence, at least, that the UDN had been divided. On the balance of probabilities, there had been a positive T test.

Although there were difficulties in relation to the expert evidence, namely M’s evidence as to the two-point discrimination and filament tests, they were explained in the Claimant’s favour on the basis that the positive readings in those tests had been false (see paras 43, 46, 67, 69-71 of judgment).

 

The Court’s Decision: PCN

The Claimant had not proven, on the balance of probabilities, that there was a division of the main branch of the PCN, rather than a division of the smaller branches. Only the former was negligent (para.83).

Judgment for Claimant in part

RUWENA KHAN

6th June 2014

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