England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Miss Recorder Davies QC
SITTING AS DEPUTY JUDGE OF THE HIGH COURT
HQ05X02043

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th April 2007

Lord Justice Wall :

The appeal in outline

1. With permission granted by Scott Baker LJ on paper on 9 October 2006, Terrosina Jane Smith appeals against an order made by Miss Recorder Davies QC, sitting as a deputy judge of the High Court on 3 July 2006, dismissing the appellant's claim for medical negligence against the Southampton University Hospitals NHS Trust (the Trust).
2. The claim arises from injuries suffered by the appellant during the course of a radical hysterectomy and associated removal of potentially cancerous pelvic lymph nodes undertaken by two surgeons employed by the Trust, Mr. Iain Boyd and Mr. Joe Nieto on 3 October 2001. At the time, Mr. Boyd, who has since retired, was a consultant gynaecologist at Southampton General Hospital, a post which he had held since 1 January 1974. Mr. Nieto at that time held the position of sub-speciality registrar. He has since become a consultant, and is currently employed as a consultant gynaecologist by the Norwich and Norfolk NHS Trust.
3. It is common ground that the operation, which Mr. Boyd and Mr. Nieto performed jointly, was successful in removing the appellant's potentially cancerous lymph notes, and that it appears thereby effectively to have eliminated any further risk of cervical cancer. However, during the course of the operation, two significant events occurred which have had serious consequence for the appellant. The first is that the appellant's right obturator nerve, a substantial structure which controls the adductor muscles of the right leg, was severed during that part of the operation conducted by Mr. Nieto. Although the surgeons immediately attempted to repair the nerve, they were not successful.
4. The second event was that Mr. Boyd perforated the appellant's left external iliac vein, a substantial structure affecting the blood supply to her left leg. This second incident caused substantial bleeding, which Mr. Boyd attempted to control by stitching the hole initially with a stitch known as a Z stitch, and then, when that did not work, by adding two further stitches. Unfortunately, the effect was to gather the venous material together in a way which almost completely blocked the passage of blood through the vein. At that point, Mr. Boyd called for the assistance of a vascular surgeon, Mr. Gareth Morris. Mr. Morris was obliged to take down and remake Mr. Boyd's repair, and this resulted in a significant narrowing of the vein. As a result of this double misfortune the appellant, who is still a young woman, is left with substantial disabilities.
5. The particulars of negligence initially identified four failings. The deputy judge summarised them in paragraph 2 of her judgment in the following way:-

(1) failing to identify and preserve the obturator nerve on the right side instead tearing or transecting the nerve;

(2) failing properly to repair the damaged nerve and / or failing to request the assistance of a neuro surgeon in order to effect repair;

(3) damaging the left external iliac vein;

(4) over-sewing the vein before and instead of requesting the assistance of a vascular surgeon.

6. The deputy judge found that neither surgeon had been negligent. Her decision is now challenged only as to grounds (1) and (4) above, that is to say the damage to the right obturator nerve and the attempted repair to the left external iliac vein. It is, moreover, common ground that grounds (1) and (4) are discreet allegations, and that neither is dependent on the other. Although the two surgeons performed the operation together, negligence is alleged only against Mr. Nieto in relation to the right obturator nerve, and only against Mr. Boyd in relation to his attempts to repair the left external iliac vein. In particular, it should be noted that it is not now alleged that Mr. Boyd was negligent in initially damaging the vein.
7. The deputy judge had the advantage of information from what she described as "a multiplicity of experts". On the aspects of the case relevant to this appeal, the deputy judge had both written reports and oral evidence from two distinguished consultants in the field of gynaecological oncology, Mr. William Soutter and Mr. John Monaghan. The former was Reader in Gynaecological Oncology at Imperial College School of Medicine, the Institute of Obstetrics and Gynaecology at the Hammersmith Hospital in London and a consultant gynaecologist with the Hammersmith Hospitals NHS Trust. The latter had been Director of Gynaecological Oncology at the Queen Elizabeth Hospital in Gateshead between 1974 and 2000, and a senior lecturer in Gynaecological Oncology at the University of Newcastle upon Tyne from January 1974 to June 2002. Both had performed the operation under discussion in this case many times. The two experts had also had a telephone conference about the case on 17 February 2006, and had answered a series of 18 questions. There was, as would be expected from experts of such distinction, a substantial amount of common ground between them.
8. The deputy judge also had the advantage, in relation to the allegation of negligence against Mr. Boyd, both of a written report and oral evidence from Mr. Gareth Morris, the consultant vascular surgeon at the Southampton General Hospital, who had answered Mr. Boyd's call and repaired the appellant's left external iliac vein. There was also a joint report from two vascular surgeons dealing with Mr. Boyd's attempts to repair the vein.

The damage to the right obturator nerve

9. As the two allegations of negligence are discreet, and neither depends on the other, I propose to address them separately. I start with the fact that the right obturator nerve was severed during the operation.
10. It was common ground between Mr. Soutter and Mr. Monaghan in their telephone conference and at trial that damage to an obturator nerve was a recognised complication of a radical hysterectomy, although they both put the risk of it occurring at less that 1%. They also agreed that whilst severance of the obturator nerve during radical hysterectomy may be due to substandard surgical technique, it was sometimes found that accidental damage to, or division of, the obturator nerve may occur during identification of the nerve without any evidence of substandard technique. They further agreed that the account of the operation given by Mr. Nieto before the trial (which, as I shall relate, differed from what he said at trial) neither suggested nor excluded sub-standard surgical practice.
11. As at the date of the experts' telephone conference, the circumstances in which the right obturator nerve had come to be damaged and then severed were not, it has to be said, at all clear. The post-operative note, written by Mr. Boyd without consulting Mr. Nieto was both inadequate and uninformative, although the deputy judge did not regard the absence of a proper "serious clinical incident" form as being of particular assistance. However, the post operative note supplied by Mr. Boyd was also inaccurate. In relation to this part of the operation, it simply said: - "Right obturator nerve transected (my emphasis) during dissection. Not possible to rejoin ends".
12. Some time was taken up at trial with Mr. Nieto and Mr Boyd in particular in discussing whether or not the nerve had been transected (that is to say severed by being cut in two) or whether the nerve had been severed in some other way. As the evidence emerged, it was plainly the latter.
13. The deputy judge was also not assisted, in my judgment, by Mr. Nieto's written statement, dated 31 March 2005. The explanation contained in paragraph 5 of that statement is in the following terms:-

During the pelvic lymphadenectomy on the right side, I removed the external iliac lymph nodes and the internal lymph nodes. I visualised the right obturator nerve but, unfortunately, while dissecting the obturator nodes, I tore the right obturator nerve. The distal end retracted. We sutured the proximal end to what we believed was the distal end although there was no certainty of opposing the ends correctly.

(I interpolate to point out that the word "visualise" in this context and when used subsequently is a term of art meaning "expose", so that it could be seen with the naked eye).

14. The pleadings were equally uninformative. Paragraph 17 of the amended defence simply contained an admission that the right obturator nerve "was transected during surgery on 3 October 2001" and paragraph 19 advanced the bare contention that transection of the obturator nerve was a recognised complication of radical hysterectomy.
15. A more detailed statement of how the right obturator nerve came to be severed did not emerge until 4 November 2005 when, in response to a request for information under CPR Part 18, the following question was posed and the following answer given:-

Request 2

Please confirm with the level of detail to be relied upon at the trial, a detailed description of how the damage to the claimant's right obturator nerve arose. By way of clarification, where in its course was the nerve torn or transected and how did it happen?

Response 2

The part of the obturator nerve which a gynaecologist would visualise during this procedure is located deeply within the obturator fossa, which is within the pelvis. It is situated in the vicinity of various vessels. It is surrounded by fat and lymphatic tissue containing the obturator nodes. As part of the surgical procedure which the claimant underwent (pelvic node dissection) it was necessary to remove the lymph nodes to achieve the best outcome for the claimant since it could be cancerous.

Having accessed the pelvic cavity, Mr. Nieto pushed the vessels laterally, visualising the mass of fat and lymphatic tissue around the obturator nerve. Gentle traction was applied in order to mobilise and remove this mass of tissue containing the fat and the obturator node and Mr. Nieto started to expose and visualise the obturator nerve.

Whilst he was trying to remove the obturator node which was contained within the fat and lymphatic tissue and which was attached to the obturator nerve, the obturator nerve broke in two. Mr. Nieto considers that he must have already damaged the obturator nerve and weakened it during the dissection for it to have broken in two under gentle traction.

Approximately 1 – 2 inches of obturator nerve is usually visible within the operating field. Mr. Nieto cannot recall precisely where along the 1 - 2 inches of exposed length of obturator nerve this damage occurred.

Mr. Nieto reserves the right to provide further information about how the damage occurred at the trial of this matter.

16. It will be immediately apparent that this explanation, whilst fuller, does not address the critical question. Unsurprisingly, therefore, the appellant's advisers asked it in a further request for information dated 7 February 2006: "Explain why it was considered the obturator nerve had already been damaged?" The answer, in a letter from the Trust's solicitors dated 13 February 2006, was both unhelpful and circular, namely: "the previous response already provides the answer to this".
17. In my judgment, therefore, the trial opened with the Trust's case in relation to two of the critical issues in the case unclarified. Firstly: how had the right obturator nerve come to be weakened so that it severed under gentle traction? Secondly, had Mr. Nieto been negligent in so weakening the nerve? It follows that in my judgment, the deputy judge's principal task was to resolve these two critical points, always assuming, of course, that the evidence enabled her to do so.
18. The transcript of Mr. Nieto's oral evidence does not read well, but I bear in mind that I was not the trial judge and did not have the opportunity to assess Mr. Nieto's credibility. In contrast with Mr. Boyd, whom the deputy judge found to be truthful, she makes no assessment of Mr. Nieto's credibility. However, it does seem clear to me that, despite his apparent vagueness, the circumstances in which the right obturator nerve came to be damaged did emerge from his oral evidence, although to demonstrate how, it is necessary to identify and set out several passages in the transcript in which Mr. Nieto addresses the point.
19. In his evidence in chief, he adhered to the view that he must have damaged and weakened the right obturator nerve for it to have broken in two under gentle traction. He was then asked:-

Question:

Can you be more specific about when you think the original damage occurred?

Mr. Nieto:

It must have been when I was looking for it, because if you are examining - the obturator nerve lies in between all the fat and the lymph nodes – then when you are doing the dissection to find the nerve, then the ones that you identify and visualise it, then I normally pick up the bunch of fat with the lymph nodes to put some traction and then allows you to separate it completely from the obturator nerve.. (sic)

20. At this point Mr. Martin Porter, counsel for the Trust interrupts with the words "Not too fast" and the deputy judge says that she has written down the words: "I was doing the first section. I could visualise the nerve". The witness then continues: -

Well, within this bunch of fat, the lymph nodes, you try to dissect in order to visualise the nerve, and I normally do the section – you normally do it with the scissors and once you have identified or seen a little bit of the nerve, then you can grab the fat bundle, put some gentle traction, and that helps you to finish the dissection of the nerve, of all the fatty tissues.

The deputy judge:

It helps you to what?

Mr. Nieto:

To complete the dissection from the nerve. Then although the obturator nerve is 2, 3mm in thickness, theoretically – this had never happened before or after, or since then – then (inaudible) construction, you will damage it. It would mean that I might have damaged it whilst looking for it enough to just be putting some gentle traction is enough to (inaudible), I think.

21. This is, so far as I am aware, the first mention of the use of scissors. Unsurprisingly, Mr. Moxon Browne, QC, leading counsel for the appellant took up the point in cross-examination. The first relevant passage relates to the word "transect" used by Mr. Boyd in the post operation summary. On page 13 of the transcript, the following exchange occurs:-

Mr. Moxon Browne:

Now "transect" means cut in two, does it not, with a sharp instrument?

Mr. Nieto:

Yes, it means cut.

Mr. Moxon Browne:

I think, having listened to you answering Mr. Porter just now, whatever else you did to the obturator nerve, you did not transect it? I do not think you know what you did do, but you did not transect it?

Mr. Nieto:

That's the problem, you see. I might have – well, I'm sure that I probably have done it at least partially while I was looking for it.

Mr. Moxon Browne:

You did not transect it with either scissors or a knife, did you?

Mr. Nieto:

No, but I might have cut it a bit, enough to weaken it.

Mr. Moxon Browne:

As I understand it, it happened in two stages. The first stage is when you are looking for it, as you described to Mr. Porter, you are placing gentle traction on it, and it maybe turned a little, and then later when you can see it, it turns again?

Mr. Nieto:

No, no. sorry. Maybe I didn't explain myself. To start with, it is when you have separated the vessels and you have brought the vessels to one side, then you start looking into the fatty tissue that contains the lymph nodes and the nerve, and normally you do that with a scissors (sic).

The deputy judge:

This is important and you have got to slow down, all right? You separate the vessels?

Mr. Nieto:

You separate the vessels to give you access to the fatty tissue contained in the fat, the lymph notes and the nerve, and then you try to visualise the nerve. Well, in my case, I normally do it with a scissors, until you identify a little bit of the nerve. Then what you do is you pull tension on the lymph glands and the fat, and that allows you to separate the nerve completely from the lymph nodes, and then you have a bundle of fatty tissue containing the glands in your hand and the nerve is left behind.

22. Slightly later, Mr. Nieto repeats his statement that: -

……. you push the vessels to one side and you identify the fatty tissue, and then with the scissors – because the assistant has already retracted the vessels – with the scissors you try to open the space to try to visualise the obturator nerve, and once you have identified the obturator nerve, then you pick up the fatty tissue containing the lymph glands and by putting a little bit of gentle traction on the fatty tissue, then you can separate the obturator.

23. At this point, Mr. Moxon Browne interrupts and the following exchange occurs:-

Mr. Moxon Browne:

Yes, you have said that several times. I want to know how the first damage that you postulate occurred?

Mr. Nieto:

As I said, once you separate the vessels, normally with the scissors, you separate the fatty tissue to try to identify the nerve which is there.

Mr. Moxon Browne:

So you are saying that at that stage you what?

Mr. Nieto:

I might have damaged the nerve in some way.

Mr. Moxon Browne:

With what?

Mr Nieto:

With the scissors that I was using.

The deputy judge:

When you are applying the traction?

Mr. Nieto:

Before I apply the traction.

Mr. Moxon Browne:

Well, if the nerve was there to be damaged, you must have been able to see it?

Mr. Nieto:

No, not particularly, because it's surrounded with all the fatty tissue, which means that by the time you see it you already have to push the fatty tissue out of the way

Mr. Moxon Browne:

If you are working blind, you have to obviously be very, very careful?

Mr. Nieto:

And we are, and I am.

Mr. Moxon Browne:

Well, I think on this account you were not, because you cut it?

Mr. Nieto:

Absolutely, but as I said before, with several hundreds of them this is the only occasion that I have done, which means that my technique must be safe in general –

Mr. Moxon Browne:

I am not suggesting that you always make mistakes of this kind, but plainly on this occasion if you damaged it at a time when you could not see it, you must have been proceeding rather incautiously?

Mr. Nieto:

I cannot prove or disprove one way or another, but to say that I did it in the same way that I did (inaudible) of them.

24. At a later point in the cross-examination, the manner in which the nerve may have damaged is clarified in following exchange: -

Mr. Moxon Browne:

All right. So you are saying that the initial damage which you speculate must have happened, happened at a time when you were trying to visualise the nerve?

Mr. Nieto:

Yes.

Mr. Moxon Browne:

I think it follows from that that the damage must have occurred at a time when you could not see the nerve?

The deputy judge:

That is what he said, yes.

Mr. Moxon Browne:

I am going to suggest to you that if you bring your knife or scissors into contact with the nerve at a time you cannot see it, it is at least strongly suggestive that you are proceeding without proper caution.

Mr. Nieto: -

Indeed, but obviously we don't use a knife in that particular area, we use the scissors, and the scissors normally are closed, which means that the possibilities of causing any damage is basically very, very small indeed. It might have been that the tip of the scissors may be open just enough to cause.

Mr. Moxon Browne:

So I think you are agreeing with the proposition that if you are working, as it were, blind in order to visualise the nerve, you should keep your scissors shut, and you should not cause damage to the nerve? You have got to proceed very cautiously?

Mr. Nieto:

Yes.

Mr. Moxon Browne:

Thank you. And you say that for whatever reason you did not do that and your scissors were probably open and you did?

Mr. Nieto:

A little bit of the tip at the end, yes, just enough to sort of – not all the scissors, but just a very little bit open, yes.

Mr. Moxon Browne:

I think what you are describing is a want of care, are you not, on your part? You were momentarily careless?

Mr. Nieto:

As I said before, I don't think I was careless. It is just that I made a mistake on that particular occasion.

25. My final extract from Mr. Moxon Browne's cross-examination of Mr. Nieto occurs on pages 23 and 24 of the transcript, when the evidence returns to the question of the open scissors. Mr. Nieto accepts that the scissors should not have been open. The scissors must have been open otherwise the nerve would not have been damaged. I cite only part of one question and the answer to it:-

Mr. Moxon Browne:

Well, I think as a surgeon you would know whether or not, or you should know whether or not you have got your scissors open. But that is the explanation you put forward, that you inadvertently allowed your scissors to open at a time when they should have been shut, and you say that was a mistake?

Mr. Nieto:

Well, I assume that is the case. That's the only explanation.

26. In re-examination on the following day, Mr. Nieto stated that he assumed what Mr. Porter called "the initial damage" to the right obturator nerve had been caused in the way he had described. He also repeated that it was normal surgical practice to use the closed scissors to separate tissue, and added that sometimes it was necessary to open the scissors in order to help doing so. Neither proposition was controversial, although – as will be apparent - the critical point made by Mr. Soutter was that the scissors should only be open when they were fully in view.
27. At the end of Mr. Nieto's evidence I am satisfied that he was telling the deputy judge what in his view had happened. It was the only way he could explain the damage to the right obturator nerve. He had been parting tissue using closed scissors. He had opened the scissors, and left them open, albeit only to a small extent, at a time when he could not see their tips. In so doing, the sharp tips of the open scissors had come into contact with the right obturator nerve, and damaged it.
28. Having read the transcript, I am in no doubt at all that the evidence given by Mr. Nieto provided a sufficient basis on which the deputy judge could (and in my judgment should) have decided on the balance of probabilities that this is what had occurred.

Was there a case in negligence if the right obturator nerve was damaged in the manner described by Mr. Nieto? The evidence of the experts

29. In my judgment, the answer to this question is clearly "yes". Mr. Soutter, who, like Mr. Monaghan, listened to Mr. Nieto's evidence, gave unequivocal evidence to the deputy judge that in his opinion what Mr. Nieto had described represented sub-standard surgery. Early in his evidence in chief, he gave his understanding of Mr. Nieto's evidence. It was that Mr. Nieto had opened his scissors slightly whilst dissecting in the fat. Mr. Nieto had then speculated that the scissor blades remained open. Mr. Soutter then said:-

If his speculation is right that the scissor blades were open, that sounds an entirely reasonable explanation for what happened, and that would be a regrettable lapse of surgical technique.

Mr. Moxon Browne

What would be a regrettable lapse of surgical technique?

Mr. Soutter

It would be, I believe, my lady a lapse of surgical technique to have the scissors, the point of the scissors, out of surgical, out of view, of the surgeon but the scissors opened and therefore capable of cutting structures like the nerve or veins and using the scissors to dissect the tissues when they are held in that position.

30. Slightly later, following an intervention from the deputy judge, Mr. Soutter was asked: -

Mr. Moxon Browne:

When you teach and instruct and train in this particular operation, what do you teach as the correct technique for using the scissors to dissect? What is the generally accepted technique?

Mr. Soutter

My Lady, most surgeons will use the scissors to dissect the fat which contains the lymph nodes away from the blood vessels and the nerves, by inserting the closed scissors into the fat at a point where they believe the plane that they wish to enter can be found. Having inserted the closed scissors, the scissors are then opened in order to spread the tissues apart.

And, having opened the scissors, spread the tissues, the scissors are then withdrawn and closed under direct vision, when you can be confident that they will not cut another structure inadvertently (my emphasis).

Mr. Moxon Browne:

Is there any part of that process that you have described that you tend to emphasise particularly to your students or trainees?

Mr. Soutter:

My Lady, I always emphasise to my trainees the importance of not closing the scissors until they are clearly visible.

31. In cross-examination by Mr. Porter, Mr. Soutter repeated his acceptance of the proposition that the simple fact of the damage to the right obturator nerve did not, of itself, imply negligence, and he further agreed with the proposition that the fact that Mr. Nieto could not explain precisely how it happened did not indicate negligence. However, he was not shifted from the proposition that the damage to the right obturator nerve, as described by Mr. Nieto, represented sub-standard surgery. The following exchange is typical:-

Mr. Porter: -

So we have, as part of a reasonable and standard procedure, open scissors within the patient's pelvis during the operation?

Mr. Soutter:

The scissors are open – are opened in the tissue that is being dissected, but they are removed before being closed under direct vision so that there is no risk of inadvertently closing them around a vital structure.

Mr. Porter:

Yes, but you see Mr. Nieto's speculation did not involve inadvertent closing of the scissors; it involved inadvertent contact of the open scissors with the nerve?

Mr. Soutter:

That, my Lady, is exactly the same in effect, whether he is closing the scissors over the nerve in this case, or whether he is using partially open scissors to assist his dissection. The very act of pushing through the fat with partly opened scissors runs the risk of dividing a nerve or a vessel, if one is in that position. (my emphasis)

Mr. Porter:

If you have open scissors there is inevitably some small risk that the blade will contact the nerve inadvertently. That is how this type of injury may occur without negligence?

Mr. Soutter:

That is how Mr Nieto believed this injury to occur. I regard that as sub-standard surgery. It is certainly not what I teach my own trainees, and I would censure them, if I may use that term – I would advise them strongly against using that, if they used that technique in my presence.

32. There is, of course, more in the cross-examination on this point, but in my judgment, Mr. Soutter's clear and simple point is that the points of a surgeon's scissors in this operation must be kept closed when not in view except if the surgeon was opening them to separate tissue, and then withdrawing them. If the initial damage to the right obturator nerve was caused by a cut from partially opened scissors, that was sub-standard surgery.

Did Mr. Monaghan disagree?

33. Like Mr. Soutter, Mr. Monaghan was present during Mr. Nieto's evidence. The first questions he was asked about it in his evidence in chief were the following:-

Mr. Porter:

Can I ask you whether it is or is not unusual to have exposed scissor blades in the vicinity of the obturator nerve?

Mr. Monaghan

I think I would agree entirely with Mr Soutter's comments that exposed scissor blades are a common part of our surgical practice and they really should be only exposed when fully visible to the operating surgeon.

Mr Porter:

Are they used in the way he described?

Mr. Monaghan

I would agree with Mr. Soutter entirely that separation is a better word (I interpolate – than "traction") and a more accurate word to use in the way that we utilise these things extensively throughout our dissection.

Mr. Porter:

We know that it is common ground between you and Mr. Soutter, because it is in the joint statement, that the occurrence of damage itself to the obturator nerve does not indicate sub-standard surgery?

Mr. Monaghan:

We are both of that opinion.

Mr. Porter:

Does in your opinion the contact of an implement with the nerve – inflicting that damage – demonstrate sub-standard surgery?

Mr. Monaghan:

I think we cannot say that it will always indicate sub-standard surgery.

34. Mr. Porter then moves on. However, I have to say that I find the last answer I have recorded as, at best, equivocal.
35. During the course of a lengthy cross-examination by Mr. Moxon Browne, Mr. Monaghan expressed concern about Mr. Nieto's "apparent lack of memory" in relation to the operation, compared with Mr. Monaghan's own practice, in which he said that he remembered "every tiny manoeuvre". He was then asked:-

Mr. Moxon Browne: -

Do you feel you know that happened in the course of Mr. Nieto's work?

Mr. Monaghan

I could not say absolutely categorically that I was certain of the exact mechanism that occurred in the damage to the obturator nerve. However, his supposition, and the reasons that he presents, would fit very well with my experience of the circumstances where I have seen similar events occurring. It is probably – the commonest reason why the obturator nerve is damage (sic) in that it does come into contact with an incompletely closed pair of scissors.

Mr. Moxon Browne

Yes, and scissors which are at the time moving together as opposed to apart?

Mr. Monaghan:

Well, I don't know whether we can say they were moving together or not. These scissors – I don't think anyone other than a surgeon would realise just how incredibly sharp that last millimetre of scissor can be, and it really doesn't need to be wide open. It is a tiny opening – this nerve is not circular, it is slightly elliptical – and to pick up the edge with the scissor, it would go through it.

Mr. Moxon Browne

No doubt that is why the great object of this form of surgery is to dissect that which needs to be dissected and to visualise and preserve that which needs to be preserved, and only to use open scissors when you can see the tips? It is common sense really.

Mr. Monaghan

It is.

36. At the very end of his evidence, and in answer to questions from the deputy judge, Mr. Monaghan confirmed that Mr. Nieto's belief as to how the damage occurred would be consistent with his own experience of similar incidents and did not represent sub-standard surgery. However, on the crucial details identified by Mr. Soutter, it does not seem to me that Mr. Monaghan was expressing a different opinion.

Taking stock

37. Before examining the manner in which the deputy judge approached the damage to the right obturator nerve, it seems to me that the following two points are reasonably clear. The first is that although Mr Nieto's explanation of how the damage occurred can be described as speculative; (a) the speculation fitted in very closely with the experience of both experts; and (b) was, in reality, the most likely explanation for what had occurred. The second point is that there was plainly a disagreement between the two experts about it. Mr. Soutter thought it represented sub-standard surgery: Mr. Monaghan, whilst not in any way dissenting from the propositions advanced by Mr. Soutter that the tips of scissors should be kept shut (and, if opened to separate tissue, should only be closed when in full view) told that deputy judge that in his view it was not.
38. In my judgment, therefore; (1) there was plainly material before the deputy judge on which she could properly make findings of fact on the balance of probabilities as to what had occurred; and (2) she was duty bound both to address and to adjudicate upon the rival views expressed by the two experts as to whether or not the damage caused to the right obturator nerve constituted "sub-standard surgery" – or, in legal parlance – was negligent.

The deputy judge's approach to the damage caused to the right obturator nerve

39. The deputy judge deals with the damage to the right obturator nerve in two places in her judgment. The first is between paragraphs 43 and 47. The second is between paragraphs 59 and 62, in which she explains her conclusions.
40. In paragraphs 43 to 45, the deputy judge sets out the respective views expressed by Mr. Soutter and Mr. Monaghan. No complaint is made of the manner in which she does so. However, in paragraphs 46 and 47 she says:-

46. The difficulty which Mr. Monaghan identified is the anatomy. The material to be separated he likened to slightly firm tissue paper. It joins the nodes and the fat together and lies around vessels. The surgeon separates the tissue under vision, it is brought together, it is then necessary to cut it to release it to move on to the next stage of dissection. The difficult area is behind the vessels. There are times when you do cut without perfect vision. In such circumstances you do it extremely gently. In examination in chief and in cross-examination Mr. Monaghan stated that Mr. Nieto's accounts of what he assumed had taken place did not represent sub-standard surgery.

47. Mr Soutter and Mr. Monaghan were in court to hear Mr. Nieto's account of the procedure. The view which Mr. Monaghan expressed came from a surgeon who for many years ran the largest gynaecological unit in Britain, had been for nearly four years the national lead in gynaecological oncology and had been personally involved in over 1,500 cases of cancer. It was an opinion based upon years of relevant experience and knowledge of the difficulties of this operation.

41. In paragraph 59, the deputy judge finds that the surgery performed was difficult and technically demanding. She points out it that appears to have eradicated cancerous growth, of which there had been no recurrence. Paragraphs 60 to 63 need, I think, to be cited in full.

Damage to the obturator nerve

60. Damage to this nerve is a recognised complication of a radical hysterectomy. The fact of such damage is not itself evidence of substandard care. No one can say with certainty how the damage occurred. Assumption and supposition were placed before the court, the likeliest explanation being relied upon was the one proffered by Mr. Nieto. One reason why no witness can be certain is the complexity of the human body. A fact recognised in the decision of Delaney v. Southmead Health Authority [1995] 6 Med LR 355. A further reason is the inherent difficulty of the procedure.

61. Taking the claimant's case at its highest and relying on the assumption proffered by Mr. Nieto that the tips of the scissors were open, Mr. Monaghan who saw and heard Mr. Nieto gave evidence, does not describe his account of his surgery as representing substandard surgery. It is a reflection of the difficulty of the anatomy and the problem it causes for the surgeon however careful he or she is. It was not suggested to Mr. Monaghan that he was anything other than knowledgeable, skilled and experienced in the field of gynaecology. His opinion was based upon experience of this procedure and the difficulties encountered by surgeons. It was an opinion to which weight has to be given and is.

62. In their closing submissions counsel on behalf of the claimant "restated" the test enunciated by McNair J in Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 for present purposes to be this: -

"A gyn-oncological surgeon is not guilty of negligence if he has performed the surgery with the degree of care accepted as appropriate by a responsible body of skilled gyn-oncological surgeons"

The nature of the Bolam test has always been its adaptability to reflect the particular skill of the doctor in question. No one has suggested that Mr. Monaghan does not represent the view of a responsible body of gyn-oncological surgeons. Accordingly the claimant has failed to satisfy the test for negligence in respect of damage to the right obturator nerve.

63. I have stated that I was taking the claimant's case at its highest and relying upon the assumption proffered by Mr. Nieto. I am bound to say that in an action for negligence to base such a finding on what is no more than assumption or supposition in respect of a recognised risk of the procedure would be bold and I believe unfair.

Discussion and conclusion on the damage to the right obturator nerve

42. I have reached the clear conclusion that the deputy's judge's decision that Mr. Nieto can be absolved of negligence in relation to the damage caused to the appellant's right obturator nerve is unsustainable. I would, accordingly, allow the appeal in this respect, and set aside the deputy judge's finding that Mr. Nieto was not negligent. I will return at the end of this judgment to the consequences which would flow from this conclusion. I reach it, however, for the following reasons.
43. In the first place, as I have already made clear, I disagree with the deputy judge that a finding that Mr. Nieto was negligent would be based on "what is no more than assumption or supposition". In my judgment, and as will have been apparent from the citations I have made from the transcript of the hearing, the manner in which Mr. Nieto described the cause of the damage to the right obturator nerve not only accorded with the experience of both experts, but plainly represented the most likely manner in which the damage occurred. It was, in my judgment, as I have already stated, plainly open to the deputy judge to find that the damage had been caused in this way, and in my judgment, she should have done so.
44. The second point is that the deputy judge simply does not address Mr. Soutter's evidence on the point. She makes it clear that she prefers the evidence of Mr. Monaghan, but she does not explain why. She appears to rely exclusively on the Bolam test. Thus, she merely says that Mr Monaghan is highly reputable and that it had not been suggested that he did not represent the view of a responsible body of gyn-oncological surgeons. With great respect to the deputy judge, I do not think this is good enough. Where there is a clear conflict of medical opinion, the court's duty is not merely to say which view it prefers, but to explain why it prefers one to the other. This, in my judgment, is all the more so when the expert whose view is preferred accepts a substantial element of what the less favoured expert describes as basic good practice – in this case, keeping your scissors shut unless you can see what you are doing. In such circumstances, it is not sufficient, in my view, simply to say that Mr Monaghan is representative of a responsible body of medical opinion and that, as a consequence, Mr. Nieto was not negligent.
45. Thirdly, it seems to me that the passage which the deputy judge uses to vindicate Mr. Nieto is based on a misunderstanding of the evidence. I reach this conclusion with some hesitation given the deputy judge's substantial experience of personal injury litigation generally and clinical negligence in particular, but I am forced to agree with Mr. Moxon Brown that when the deputy judge, in paragraph in 46 of her judgment (which I have set out at paragraph 40 above) relies upon Mr. Monaghan's description of the human anatomy as the difficulty faced by Mr. Nieto she is transposing in her mind a passage which (with justification) relates to Mr. Boyd damaging the appellant's external iliac vein. I have not set out the passage, but it appears at pages 35 and 36 of the transcript of Mr. Monaghan's evidence and in my judgment it is clear that, when Mr. Monaghan makes references to the difficulties caused by the human anatomy, he is addressing the allegation that Mr. Boyd was negligent in damaging the appellant's external iliac vein, and not the allegation that Mr. Nieto was negligent in damaging the appellant's right obturator nerve. As will be apparent when I come to consider the allegation of negligence against Mr. Boyd, it is clear that the tributary which was attached to the posterior surface of the left external iliac vein was in an unusual position, and that Mr. Boyd did not expect to find it there. No such considerations apply to the damage caused by Mr. Nieto to the right obturator nerve.
46. In these circumstances, the deputy judge's reliance on Delaney v Southmead in paragraph 60 of her judgment does not, in my judgment, assist. I am therefore satisfied that the manner in which the deputy judge came to exonerate Mr. Nieto is unsound, and that her vindication of him cannot stand.

The case against Mr. Boyd

47. I can take this part of the case relatively shortly, as I do not have with it the difficulties which arise in relation to the case against Mr. Nieto.
48. The first point to note is that the deputy judge made a positive assessment of Mr. Boyd's credibility. In paragraphs 39 and 66 of her judgment, she accepted that he gave her his truthful recollection of events, and she also accepted his evidence as to what he had found during the operation.
49. The second point is that it is not now suggested that Mr Boyd was negligent in causing the initial damage to the left external iliac vein. Mr Boyd's description in the circumstances in which the external iliac vein came to be damaged was accepted by the deputy judge. Here, Mr Monaghan's evidence about the vagaries of the human anatomy has particular force, and was accepted by the deputy judge. The deputy judge describes Mr Soutter as "struggling" in his attempt to explain how Mr Boyd's account of damaging the vein constituted substandard practice, and the only question for this court thus becomes extremely limited. It is not even whether or not Mr Boyd was negligent in attempting to repair the hole: it is limited to whether or not he was negligent in his attempts to repair the damage himself by over-sewing it after the Z stitch had proved ineffective, thereby virtually occluding, or blocking it. In paragraph 5 to 10 of his grounds of appeal, Mr Moxon Browne complains that the judge wrongly recorded Mr Monahan's evidence on this point, and argued that there was no evidence from Mr Monaghan to contradict Mr Soutter's evidence that Mr Boyd's occlusion of the vein represented sub-standard surgery. For the reasons given in paragraph 60 below, I do not accept this argument.
50. In relation to the Z stitch, the deputy judge recorded Mr. Soutter as saying that he would not have done it himself. However, Mr Soutter had not suggested that it was an inappropriate course, given the difficulty in accessing the tear on the posterior aspect of the vein. It is for this reason that the area of alleged negligence is effectively limited to the placement of the two additional stitches.
51. In paragraphs 54 to 57 of her judgment, the deputy judge records the evidence of the two experts on the point. She records Mr. Soutter's evidence in the following terms:-

Mr. Soutter is critical of the placing of the further 2 sutures and of the quality of the sutures. In his written reports he states that when it became apparent that the tear was still leaking it was clearly not appropriate to place 2-3 more sutures in the vein. The assistance of a vascular surgeon should have been sought. The bleeding from the vein should have been controlled by finger, thumb or clamp until such time as the vascular surgeon arrived. There is no dispute that it was the additional two stitches which caused the real constriction in

the vein and compromised the repair effort of Mr. Morris the vascular surgeon. Mr. Soutter criticises the placing of the sutures saying that a wide bite must have been taken to cause such a narrowing of the vein.

52. The deputy judge then records Mr. Monaghan's evidence:-

56. The decision to put in the extra stitches Mr. Monaghan described it as one that always presents surgical difficulty. The surgeon can put pressure on the vein and obliterate any flow of blood but is limited in the amount of time he can do that. The inevitable process would have been, put pressure on for a short time, look at it again and if it continued to bleed, see whether there was another manoeuvre that the surgeon could make. Mr. Monaghan said that to decide to add further stitches to the bleeding edges was an entirely reasonable decision for Mr. Boyd to take.

57. As to the quality of the stitching, Mr. Monaghan said that there is a need to take a good bite of the edges of any bleeding point. The bite has to be big enough for the strength of the vein to accept the pull that is necessary to draw the edges together. The result of this is that there is and was an inevitable folding of that part of the Z stitch, further narrowing the lumen of the vein. This was described by Mr. Monaghan as a worrying consequence of the technique which is "extraordinarily difficult" to avoid when achieving haemostasis but it does not indicate substandard stitching. Mr. Boyd having added two stitches examined the vein and the leg and realised at that point the venous drains from the leg were significantly compromised. The decision to then call Mr. Morris was described by Mr. Monaghan as entirely appropriate. Mr. Monaghan thought it unrealistic to expect Mr. Boyd to forecast the effects of the additional stitches in terms of stenosis of the vein. He said that stenosis is inevitable whichever stitch is used.

53. The deputy judge then sets out the agreed evidence of the vascular surgeons, which includes the proposition that "a vascular surgeon would have been able to achieve a better repair (one which controlled the bleeding without causing a haemodynamically significant stenosis) had he / she been called to assist after the Z stitch proved unsuccessful in controlling bleeding".
54. Having recorded the essential differences between Mr. Soutter and Mr Monaghan (which I set out below) the deputy judge reaches her conclusion in paragraph 68 of the judgment:-

68. The fact that the vascular surgeons instructed as experts believe that one of their number could have effected a better repair does not get the claimant over the evidential hurdle created by Mr. Monaghan namely that it was appropriate for Mr. Boyd to proceed as he did. The fact of the stenosis, unfortunate as it is, does not represent substandard care in the placing and quality of the stitches. By reason of the evidence of Mr. Monaghan this aspect of the claim fails.

55. Mr. Moxon Browne attacks the judgment by asserting that, given the diameter of the external iliac vein (approximately the size of the ring finger of a rubber glove), Mr. Boyd's action in virtually occluding it by over-sewing was negligent. Whist he accepted that some stenosis (narrowing of the vein) was inevitable, virtual blocking was not. The deputy judge, he submitted, did not address the point. She had not correlated the small nature of the hole with the size of the vein. The question was thus whether Mr. Boyd, as a gyn-oncological surgeon could be excused virtual occlusion of the vein because of his lack of specialism in vascular surgery. The judge had not appreciated that this was the issue she had to try. Furthermore, the judge had not explained why she had rejected Mr. Soutter's evidence on the point.
56. I have to say that I have some sympathy with Mr. Moxon Browne's submissions on this part of the case. It would, in my judgment, have been preferable if the deputy judge in paragraph 68 of her judgment had spelled out why she preferred the evidence of Mr. Monaghan to that of Mr. Soutter on the point. However, in my judgment, her reasons for doing so emerge reasonably clearly from the judgment itself, and in my view the deputy judge was entitled to apply the Bolam test to this part of the evidence, and to reach the conclusion that Mr. Boyd had not been negligent in overstitching the hole in the left external iliac vein when the Z stitch had failed.
57. Standing back from the case for a moment, it has, I think, to be remembered in relation to this part of the case that Mr. Boyd was undoubtedly dealing with a crisis. He had, accidentally, caused a partial tear in the external iliac vein. There was undoubtedly, as a consequence, substantial bleeding. This was a problem which, in turn, had to be addressed at once. Immediate, but plainly only temporary, relief was obtained by Mr. Boyd and then by Mr. Nieto putting a finger or thumb over the vein in order to stem the flow of blood. The decision Mr. Boyd made, on the spot, was not immediately to summon a vascular surgeon to repair the vein, but to act himself by inserting the Z stitch, and then, when that did not work, to insert two further stitches.
58. The alternative would have been to have kept finger or thumb over the hole until such time as a vascular surgeon could be summoned. The difficulty, of course, was that Mr. Boyd had no idea how long that would be. The danger of simply blocking the hole with finger or thumb was, as the deputy judge pointed out, that the blood supply to the patient's leg would have been effectively cut off, and she could have developed a thrombosis. As it was, when Mr. Morris did arrive, he was surprised by the state of the patient's leg, which he described as very swollen, and badly obstructed.
59. In this instance, it seems to me that the deputy judge properly records and then assesses the expert evidence. She had the advantage, of course, not only of the evidence of Mr. Soutter and Mr. Monaghan, but of the two vascular surgeons, whose evidence was, to all intents and purposes agreed.
60. In paragraph 67 of her judgment, the deputy judge identifies the three points of difference between the evidence of Mr. Soutter and Mr. Monaghan on this part of the case. Mr. Monaghan's opinion, as recorded by the judge, was; (1) that it was appropriate for Mr. Boyd as a gynaecological surgeon to place the additional sutures; (2) that the placing and quality of the sutures did not represent substandard care; and (3) having placed the final two sutures and checked the patient's leg, it was at that point appropriate for Mr. Boyd to call for the assistance of a vascular surgeon. Mr Moxon Browne complains that the deputy judge's record of Mr Monaghan's evidence is erroneous, and he had not given any evidence that the placing and quality of the sutures did not represent sub-standard care. I am unable to accept that submission. Mr Monaghan made his position perfectly clear in the answers he gave in his evidence in chief, and in cross-examination he stated in terms that "to be hyper-critical of one particular type of repair is really a little unrealistic". In summary, there was material on which the deputy judge could properly find a difference of opinion between Mr Soutter and Mr Monaghan on this point.
61. The deputy judge had earlier rejected Mr. Soutter's evidence that Mr. Boyd should have summoned a vascular surgeon at a much early stage. She described that as a counsel of perfection, and her conclusion in that regard is not challenged. She described Mr. Soutter as "struggling" on this initial aspect of the case.
62. In this context, and in contrast to her absence of reasoning in relation to her rejection of Mr. Soutter's evidence in relation to Mr. Nieto, the deputy judge was, in my judgment, entitled to rely on the fact that Mr. Monaghan; (1), as a respected gyn-oncological surgeon, regarded what Mr. Boyd had done as reasonable; and (2) that since he plainly represented the views of a responsible body of gyn-oncological opinion, the application of the Bolam test meant that Mr. Boyd could properly be absolved of negligence.
63. The critical difference between the allegation of negligence by Mr. Boyd on this part of the case, and the separate allegation of negligence relating to Mr Nieto is that in relation to the latter there was, in my judgment, a substantial amount of agreement between the two experts in relation to the technique under discussion (parting tissue with scissors but not closing the tips unless they were in view) which positively required the judge to explain why she rejected the evidence of Mr. Soutter. When it comes to the question of the repair to the left external iliac vein, there is a simple issue. Was it reasonable for Mr. Boyd to act as he said he had and as the judge found him to have done, and in particular, was Mr Boyd's performance in occluding the external iliac vein and then calling for a vascular surgeon compatible with ordinarily competent surgery? Mr. Monaghan thought it was. There was plainly a legitimate foundation for Mr. Monaghan to take that view, and since he did so, that was, in effect, sufficient for the deputy judge's purposes when applying the Bolam test.
64. In these circumstances, and whilst it would, in my judgment, have been preferable for the deputy judge to have spelled out her reasoning more clearly, it seems to me that on this part of the case she was entitled to prefer Mr. Monaghan's evidence that it was appropriate to Mr. Boyd to proceed as he did.
65. Such a result also accords, in my judgment, with common sense. Mr. Boyd was placed in a very difficult position – indeed, a crisis. In that crisis he took a particular option. Mr. Monaghan thought it a reasonable option. I agree with the deputy judge's conclusion that the fact that a vascular surgeon, if summoned immediately, could have effected a better repair does not get the appellant over the evidential hurdle presented by Mr. Monaghan's evidence. I would, accordingly, dismiss the appellant's appeal in relation to this part of the claim.

Disposal

66. In normal circumstances, my view would be that we should remit the allegation of negligence against Mr. Nieto for re-hearing before a different tribunal. However, in his skeleton argument prepared for the appeal, Mr. Porter expressly invited us not to take this course were we to allow the appeal in any respect. In such circumstances, he invited us to remit the case to the deputy judge for determination of the quantum of damages.
67. Mr. Porter's essential reason for inviting us to take this course was that the costs of the case are already substantial, and that any re-trial would not be a proportionate outcome. I respectfully agree. In my judgment, it would be open to this court on the material available to substitute a finding of negligence against Mr. Nieto, and for the case now to proceed to an assessment of damages on this limb of the case seems to me both sensible and proportionate.
68. Mr. Moxon Browne, unsurprisingly, did not oppose remission for an assessment of damages in the event that the appeal was allowed. He made it clear to us, however, that he would object strongly to a remission to the deputy judge, notwithstanding the fact that she had heard evidence in relation to the quantum of damages.
69. We did not hear argument from either side on this point, and, speaking for myself, it seems to me that the most sensible course in the interest of keeping costs to a minimum would be for us to invite submissions in writing from counsel as to the correct disposal of the case in the light of our judgments. If they are able to agree the outcome, the likelihood is that we would then make a consent order.
70. Equally, there may be an argument over costs. I would once again invite the parties to agree an order for costs, but if they are unable to do so, submissions should be made to the court in writing, and we will adjudicate in writing after having received them.
71. I would therefore suggest that, if agreement cannot be reached, written submissions on both costs and disposal should be made to us within seven days of the date on which judgment is handed down. We will then be in a position to give further brief reasons for whatever course we decide to adopt.
72. I would, accordingly, allow the appeal to the limited extent set out above, and invite written submissions from the parties on disposal and costs.

Lord Justice Leveson:

73. I agree

Sir Mark Potter, P.

74. I have nothing to add to the reasoning so clearly set out in the judgment of Wall LJ, with which I entirely agree.