England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
Queen's Bench Division

		Royal Courts of Justice
		20 November 2009

Judge Thornton QC:

Introduction

1. The claimant is forty four and, until the operation that has led to this claim, she worked as a quality controller. On 29 June 2004, the claimant underwent a hysterectomy at the Scarborough Hospital under general anaesthetic. The operation was performed by Dr Cross who was the Registrar of Mr Andrew Booth, the Consultant Obstetrician and Gynaecologist who supervised the operation and who was present throughout. Following the operation and, as the claimant contends, as a direct result of it, the claimant sustained damage to her left ilio-inguinal nerve ("IIN"). This damage was, she contends, caused by the abdominal incision known as a Pfannensteil incision that was a necessary part of the procedure. Her complaint is that this incision as performed was unduly and excessively long for an abdominal hysterectomy. Its length should not have exceeded 15cm but, as performed, it exceeded 20cm as shown by her abdominal scar length which was measured as being 20.5cm in length. Such a length, indeed any length in excess of 15cm, was only justified if considered necessary to respond to an anticipated complication during the proposed surgery or as a result of a complication which developed during the surgery and neither of these eventualities occurred. Had the incision as performed been confined as suggested, it is contended that the IIN damage would not have occurred. The claimant accordingly claims that the operation was performed negligently, that the defendant, as the NHS Trust responsible for the Scarborough Hospital, is vicariously liable for that negligence and that she is entitled to damages. The damages have been agreed subject to liability but liability and causation are in dispute.
2. At the trial, the claimant gave evidence of the pain and the effect on her of that pain that she has experienced since the operation. Mr Booth gave evidence of the operation. Each party called two experts, a consultant gynaecologist and a consultant neurologist. The gynaecologists dealt with the issues of duty and breach and the neurologists with issues of causation. By the conclusion of the evidence, there were four issues left for decision:

(1) Whether the Pfannensteil incision caused the damage suffered by the claimant;

(2) Whether the operation was performed without reasonable skill and care so as to constitute a breach of the duty owed by the defendant to the claimant; and

(3) Whether the damage that was suffered was reasonably foreseeable; and

(4) If an actionable breach of duty occurred, whether the resulting damage would have been avoided had the Pfannensteil incision been performed without any breach of duty.

The Incision and its Aftermath

3. The claimant has always had very painful heavy periods. She had undergone various investigations over the years, including scans and laparoscopy. These revealed a small fibroid on her womb which she was advised could be removed surgically but that it was not large enough to warrant surgery given the potential problems that that surgery could cause. Her period period pains continued and were not responding to medical treatment and she was referred by her General Practitioner, Dr Williams, to Mr Booth, the consultant Obstetrician and Gynaecologist at Scarborough Hospital for a consultation about her heavy painful periods and their consequences.
4. The claimant was examined in clinic by Dr Tijani, Mr Booth's Senior House Officer. The claimant informed Dr Tijani that her symptoms sometimes prevented her from attending work. He reported to Dr Williams on 5 December 2003 that the claimant should maintain a menstrual diary for three months and that she should have a diagnostic laparoscopy and hysteroscopy and dilatation and curettage. This procedure was performed by Mr Booth on 21 January 2004 and he reported on his findings and that curettings has been sent for histology. In the handwritten notes of this procedure, Mr Booth has drawn diagrammatically the results of the investigations that show that the claimant had a normal sized uterus and mobile normal sized tube and ovaries.
5. The claimant was advised to see Mr Booth in about six weeks time. As a result, on 17 March 2004, Mr Booth saw the claimant in clinic who reported that the microscopy had revealed late secretory phase endometrium, being the presence of endometrial-like tissue in the pelvis. He explained the treatment options and the claimant decided on having a pelvic clearance or hysterectomy and removal of the fallopian tubes and ovaries which Mr Booth thought to be a reasonable decision. She was placed on the operating waiting list and was advised to take Zoladex subcutaneously every 28 days starting with her next period to assist in suppressing her ovarian function and halting her periods whilst she awaited her operation.
6. On 15 June 2004, the claimant underwent a pre-operative assessment. surgery, consisting of a total abdominal hysterectomy and bilateral salpingo-oophorectomy, which was carried out on 24 June 2004. A standard operating technique was used and there were no complications. The hospital notes describe an essentially uneventful post-operative recovery apart from some indigestion and lower abdominal pains which were thought to be secondary to wind. The abdominal drain was removed on the first post-operative day and the urinary catheter, which had caused the claimant discomfort, on the second day. The claimant was discharged from hospital on the 30 June 2004, five days after surgery.
7. The procedure was carried out under general anaesthetic. When the claimant came round she was in great pain and was given morphine. When the drain was removed, the process of pulling it out caused the claimant excruciating pain. On the following day, the claimant was in further excruciating pain when she was given a bath. This pain she considered to be moving from the waist and it was located around her abdomen and radiating down her left leg. This pain continued whilst she was moved into and during her bath. From that point, the claimant was in constant pain. At home, she contacted and was seen by Dr Williams whose notes reported decreased sensation at the bottom of the abdomen and pain in the left hip with movement. Mr Booth reviewed her on 18 August 2004 and he noted good recovery but some loss of sensation around the lower abdomen.
8. The claimant considered that her painful condition had not by then improved. She was unable to return to work on the planned date of 20 September 2004 because of groin discomfort and left labial numbness associated with pins and needles and stabbing pains. When these pains continued, she was again referred back to Mr Booth who, on 29 December 2004, diagnosed probable ilio-inguinal neuralgic pain. The claimant was referred to Dr Jones, a consultant anaesthetist in the Pain Clinic. He diagnosed significant hypersensitivity over the emergence of the left ilio-inguinal nerve with radiation into the groin and down into the thigh on 30 March 2005. An ilio-inguinal nerve block was carried out on 12 May 2005 and a repeat nerve block was carried out on 17 September 2005. The claimant described her subsequent lifestyle. She has retired on medical grounds and remains unable to undertake anything more than light meal preparations. Her movement is very restricted and she finds that she is unable to carry or push. Her social and married life have become very restricted.

The Pfannensteil Incision and the IIN

9. Pfannensteil incision. Abdominal incisions are used for most gynaecologic procedures and for obtaining access for pelvic and abdominal surgery. The Pfannenstiel incision, sometimes known as the "bikini cut", is undertaken transversely at a low level. The procedure using this incision is described thus:

"Transverse or Pfannenstiel incision

The incision

It is extremely important that the initial skin incision is level and symmetrical. A shewed scar after the incision is less acceptable than any other. The landmarks of the symphysis and the anterior superior iliac spines must be accessible and not covered by drapes. The drapes must be accurately placed so as not to mislead the surgeon. The incision should be approximately 12cm long, for a hysterectomy, shorter for more minor procedures. The initial cut is made cleanly through the skin, slightly convex, towards the pubis. The fait is incised down to the rectus sheath and the aponaurosis of the external oblique muscle. As the incision is completed, the surgeon should make short cuts into the sheath on either side of the mid-line. Small vessels in the fat are more numerous than in the mid-line incision and must be clipped and tied or diathermised. In particular, a large vein at each lateral edges of the incision are often seen and should be incised and tied unless they can be gently pushed on one side. The short incisions in the rectus sheath are now extended for the full length of the skin incision using either a scalpel or the Bonney's dissecting scissors."

The text then describes the incision of the aponeurosis and the opening of the peritoneum. The text then continues:

Closure of the abdomen

Closing the abdomen

This is carried out as in the mid-line incision, using a continuous absorbable suture material for the peritoneum and sheath. It is superfluous to suture the rectus muscles together as the design of the wound gives adequate strength."^[1]

10. IIN. The IIN is one of a number of nerves which pass down the body. The IIN arises from the first lumbar root and emerges from the lateral border of the psoas major and passes across the upper part of the iliacus and perforates the abdominus muscle near the anterior end of the iliac crest. It then pierces the internal oblique muscle which it supplies and transverses the inguinal canal just below the speratic cord, emerging at the superficial inguinal ring to supply the upper medial aspect of the thigh. This route, on both the right and left sides, takes the IIN close to the site of each end of a Pfannenstiel incision. There are other nerves which are located in close proximity to the end of the incision, particularly the genito-femoral nerve. The precise route taken by these nerves is never capable of being identified with precision and they are not readily detectable during a surgical procedure involving an abdominal incision. The IIN is contained within a vesicular bundle with fibrous tissue arranged around it.
11. Injury to the femoral nerve and another nerve, the lateral cutaneous nerve of the thigh are known as occurring on occasion during gynaecological surgery. Literature dating from 1995 and 2002 that was provided to the court suggested that one study quoted an incidence of femoral nerve injury at abdominal hysterectomy of over 11%. However, IIN nerve injury is known of and it has been noted following gynaecological surgery carried out via low transverse surgery as evidenced by post-operative moderate to severe incisional pain. The less frequently reported and, in all likelihood therefore, less frequently occurring damage to the IIN during a procedure involving use of a Pfannensteil incision is in all probability due to the different location of, and different protective factors and influences related to, the IIN compared with similar factors related to the femoral nerve.
12. The pain experienced by the claimant resulted from damage to the IIN. It was accepted by both consultant neurologists that an incision or the severing or cutting of the nerve could all be discounted as sources of the IIN nerve damage. Both Professor Swash, the consultant neurologist who was instructed by the claimant, and Professor Shapira, the consultant neurologist who was instructed by the defendant, considered that a glancing blow was the most likely cause of the damage. They both considered that it was unlikely that the damage was caused by a compression injury. What was clear was that the longer the transverse incision that is used during gynaecological surgery, the longer would be the site of the procedure and the greater would be the chance of damage to the various nerves that are at risk. The studies and reported observation of post gynaecological surgery nerve damage all suggest that the IIN nerve is at risk, albeit less at risk, than the femoral nerve during gynaecological surgery.

The Cause of the Damage Suffered by the Claimant

13. This issue had largely disappeared by the end of the trial. Originally, there were four possible causes of the damage suffered by the IIN nerve. These were:

(1) Damage caused by the procedure, whether by the dissecting, cutting, tearing, clipping, surturing or other physical disturbances undertaken during it. The damage occurred at the lateral end of the incision and the corresponding activity below the incision at that point. This activity caused a glancing blow to the IIN or to the vesicular bundle within which the IIN was located.

(2) Damage because of excessive traction from the surgical retractors used to keep the wound open during the procedure.

(3) Damage caused during dissection in the pelvis at the surface of the psoas muscle.

(4) Damage caused by the insertion of the drain placed in the abdomen for and as part of the procedure.

14. Only the first possible cause remained in play by the end of the trial. The second possible cause was not proceeded with at trial at all, the third had been put forward by Professor Swash in his first report but had been withdrawn by him in his second report and his explanation that he had made a fundamental mistake in suggesting it was accepted by Professor Shapira and the fourth was withdrawn by the defendant's counsel had heard, and had then fairly given effect to, the evidence as to the location of the drain site which was too far away from the IIN nerve to have been capable of damaging it when it was inserted or removed. Thus, the fist cause was accepted, or was not any longer challenged, as being the cause of the damage.

Breach of Duty

(1) Facts

15. The procedure was undertaken by Mr Booth's Registrar, Dr Cross. She had been qualified for six, or possibly seven, years having completed her initial two years post-qualification experience and then completed three to four years' experience in specialty. She had a further three to four years to undertake of her five-year training programme as a gynaecologist. There was no evidence of what experience she had had of performing Pfannensteil incisions. Mr Booth was present but the role he could have played in determining the length, shape and position of the incision would have been limited. Dr Cross would have been aware of the results of pre-operative diagnostic investigations which revealed that the uterus, tube and ovaries were of normal size and that the claimant's body mass index was 28 Kg psm, making her overweight but not clinically obese. The totality of the available data would have indicated that there was no reason to consider a longer incision than normal.
16. It is very important that the initial skin incision is level and symmetrical. The landmarks to be used by the surgeon are the symphysis pubis and the anterior superior and the adjacent site should not be covered in sheets. The surgeon is not provided with a marker line or template, the incision is made with a bold unbroken stroke from one end to the other in one movement by eye in a symmetrical straight line with slightly curved ends with an upwards concavity. The line should be mid-line and the first cut should extend well down into the fatty layers. The length of the incision is not measured out nor is it measured at any time after the incision has been performed. It follows that this particular surgery requires considerable surgery skills and considerable clinical judgment so as to achieve an incision of the appropriate length, shape, position, depth and quality.
17. Both experts agreed that the finally decided length of the incision was a matter of judgment. The length should be sufficient to enable the procedure that is to be performed to be performed safely. For clinically obese patients, additional allowance must be made in the length of the incision. Having taken all these factors into account, the surgeon then needs to confine the length so far as is reasonably possible. The need is to avoid extending the incision beyond the ledge of the rectus muscles and into the substance of the external and oblique muscles where the ilio-hpyogastric and ilio-inguinal nerves can occur.
18. The surgery undertaken by Dr Cross was, according to Mr Brown, entirely problem-free and uncomplicated. This evidence was based on the absence of any adverse comments in the operating notes. Moreover, Mr Brown could not remember anything about this particular operation which confirmed in his mind its uneventful nature. Mr Brown was at table throughout but took no part in the surgery. His conclusion was that the procedure undertaken was nothing other than a simple hysterectomy which did not require any unusual or untypical lengthening of the incision.
19. The measured length of the scar, undertaken five years after the surgery, was 20.5 cm. Both consultant gynaecologists accepted that, although the scar may have increased in length over the years due to the claimant having put on weight, the length of the scar when formed following the incision, and hence the length of the incision, could be taken to be 20cm. Most significantly, the incision was a symmetrical straight line with no curved ends.

(2) The issues

20. The key issue that arises in relation to the defendant's potential breach of duty is this: was the length and shape of the incision such as to constitute a breach of duty? The claimant asserts that the incision was too long in that it was 20cms in length without end curvatures and that, in this case, a length significantly in excess of 15cms with end curvatures constituted a breach of duty. The defendant asserts that the performed straight length of 20cms was one that was acceptable to a reasonable body of operating gynaecologists since it made allowance for any complications that might arise during the hysterectomy procedure and it was one that many operating gynaecologists would have performed.

(3) Gynaecologists' Evidence

21. Expert Gynaecologists' Joint Experts' Agreement. The two Gynaecological experts agreed that the performance of a Pfannensteil incision for the purpose of a hysterectomy is associated with the risk of injury to the IIN nerve at or about the Pfannnensteil incision. Their joint view was:

"We agree. It is a risk though it is difficult to quantify. One of the papers suggests a 7% chance of moderate to severe pain at the incision site following Pfannensteil incisions with over half being due to nerve entrapment involving the ilio-inguinal or the nearby ilio-hyporgastric nerves."

22. The two experts also agreed that:

"The wider the incision, the more likely it is to catch lateral nerves, though whether this happens is also due to variations in anatomy. So, the more lateral the furthest extent of the incision, whether straight or curved, the greater the risk of injury in general terms. It is possible the injury could have occurred with a shorter incision but that would be less likely.

23. On the crucial question concerned with the length of the incision, the two gynaecologists were in significant disagreement. Mr Magos was of the opinion that it was a breach of duty to undertake a 20cm incision for a hysterectomy in this case as that was unnecessary since there were no foreseeable complicating factors. He considered that an incision of up to 15cm was acceptable for a patient such as the claimant, a view that he found to be supported by an authoritative textbook in the field, Te Linde's Operative Gynaecology. Consequently, it was unreasonable to make an initial incision 20cms in length so as to have an incision big enough to deal with any complications of surgery that might arise. If complications occur, the incision could be extended at that point. The incision was unusually large for a patient of the claimant's weight where, at the time of surgery, there were no foreseeable complications to the surgery that would require a larger incision.
24. Mr Tufnell was of the opinion that it was not a breach of duty to undertake a 20cm incision for a hysterectomy. He, and many surgeons, would use incisions longer than 12cms and a responsible body of surgical medical opinion would agree that it is reasonable to make an initial incision of 20cms or thereabouts when performing a hysterectomy so as to have an incision big enough to deal with any complications of surgery which might arise. He would not expect an explanation in the medical records from the surgeon for the length of the incision. Surgeons make an incision of the size they feel appropriate for the patient on whom they are operating. He had never seen a note saying why an incision was of a particular length.
25. Mr Booth. Mr Booth had not obtained the claimant's consent for an operation which might result in nerve damage. This is not a matter for which the Royal College's guidelines require prior consent to be obtained and the possibility of nerve damage was not something that he would have considered or have been concerned about. Mr Booth explained that he had a duty, as the Registrar's supervisor, to draw to her attention anything untoward that had occurred during the surgery and he was sure that he had not had to do that on this occasion. He considered that although the length of the incision was longer than would usually be performed, its length was not a matter of comment. He accepted, however, that he would have operated with an incision length of between 15 and 18cm. He was not normally concerned about possible nerve damage and this would not have been a concern for him on this occasion.
26. Dr Cross. Dr Cross did not give evidence or put in a witness statement and no explanation was provided for this omission. Mr Booth thought that she had left Scarborough Hospital without completing her speciality. These facts were not sufficient to lead to any adverse inferences to be drawn from them but, in her absence, it was not possible for the defendant to put forward any explanation for her choice of length, for the lack of curved ends or for the length that was decided upon being longer than Dr Cross considered to be usually performed.
27. Mr Magos. Mr Magos is a Consultant in Obstetrics and Gynaecology at the Royal Free Hospital, London with special interests in endoscopic and vaginal surgery. He was made a Fellow of the Royal College of Obstetrics and Gynaecology in 1998, has been a Consultant and Honorary Senior Lecturer in the University Department of Obstetrics and Gynaecology at the Royal Free Hospital since June 1990 and has had over twenty five years' experience in Obstetrics and Gynaecology. He has also published and lectured widely in this field, an experience which includes over 170 peer reviewed scientific articles and over 50 chapters in books and proceedings.
28. Mr Magos explained that his principal reason for condemning an incision of 20cms in length was that it was appreciably longer than was necessary and that it was unacceptable practice to provide a longer incision than was necessary because the provision of the additional unnecessary length unnecessarily enhanced the risk of causing the patient damage or pain. In a normal case with no foreseeable complications, such as with the claimant, it was sufficient to provide an incision with a length of no more than 15cms and any additional significant length gave rise to a significant risk of damage or pain which the shorter length would avoid. If, unexpectedly, complications emerged during the operation which necessitated a longer opening, the incision could be lengthened quickly and without difficulty during the operation.
29. Mr Magos particularly referred to the following increased risks occurring: haematoma formation, hernia development, wound infection, additional post-operative pain, delayed patient mobilisation and additional healing problems including a prolongation of the healing period. Mr Magos also referred to the increased risk of nerve damage. He accepted that he was not aware of such a risk, certainly for the IIN although he was more generally aware of a possible increased risk of unspecific nerve damage and pointed to examples of such awareness he had found in the literature that pre-dated the operation in 2004.
30. Mr Magos considered that an incision of 20cms was unwarranted and was one that he had only approached in a handful of exceptional cases in the whole of his operating experience. There was no justification in this case for such a length, exacerbated by the lack of end curvatures and it defied the guidance and the recommended starting point provided by a reasonable body of gynaecological practice in the United Kingdom, the United States and Holland. He stressed that the pre-operative diagnostic work that had been undertaken for the claimant showed that there were no foreseeable difficulties that would be encountered during her hysterectomy operation that would require the surgeon to have wider access into her abdomen. Had that very low risk of such difficulties materialised, the surgeon could readily and speedily have widened the incision during the course of the operation.
31. Mr Tufnell. Mr Tufnell is a Consultant in Obstetrics and Gynaecology at Bradford Hospitals since 1994, he has been an Honorary Visiting Professor in Obstetrics at Bradford University and he has published over forty peer reviewed publications. He also sits on a number of National Committees.
32. Mr Tufnell considered that the incision performed on the claimant was within the acceptable range of practice for a gynaecologist performing a Pfannensteil Incision. He accepted that that length was in the percentile range of between 90 to 95 although that was his estimate and not based on any empirical study and that the incision length that was provided was significantly longer than that ordinarily performed for this type of procedure where the patient was not clinically obese or where there were other known difficulties that would be encountered.
33. Mr Tufnell accepted that some textbooks quoted a figure of 15cm as the appropriate operative length but considered that to be no more than a guide or a starting point. Other textbooks did not quote a length and there was no guidance issued by the Royal College of Obstetrics and Gynaecology on this subject. That led him to conclude that there was no established rule or practice to limit incision length in this type of procedure to a maximum of 15cm. His overall principle was that a surgeon should perform an incision that he or she was comfortable with.

(3) Literature

34. Mr Magos produced significant literature which provided some guidance as to what could be considered to be the appropriate professional practice with regard to the use of a Pfannnensteil incision. This was of two types: textbook extracts and professional peer-reviewed literature.
35. Textbooks. There were two textbook extracts provided:

(1) Bonney's Gynaecological Surgery^[2]. This is one of the most respected textbooks concerned with gynaecological surgery in the field^[3]. As has already been seen^[4], Bonney recommends an incision of approximately 12cm long for a hysterectomy.

(2) Te Linde's Operative Gynecology^[5]. In this text, the Pfannenstiel incision is described as being "usually 10 to 15 cm long".

36. Literature. Four extracts were provided:

(1) Morgan and Thomas^[6]. The conclusion of the study of nerve injuries at abdominal hysterectomy was that gynaecologists should be aware of the possibility of nerve injuries complicating pelvic surgery. Short incisions and the use of the Pantenes retractor may prevent its occurrence.

(2) Luijendijk and others^[7]. The study was based on patients operated on using a Pfannensteil incision of 8 – 12 cm long. One of the consequences of this procedure that was studied was nerve entrapment of the I-H, IIN and G-F nerves. 3.7% of patients had symptoms of nerve entrapment. The study concluded by recommending the use of the Pfannenstiel incision in lower abdominal surgery but warned that complications of nerve damage are not uncommon and should be recognised. The study referred to a number of articles which had studied the problems that had been encountered with nerve entrapment associated with a Pfannenstiel incision^[8].

(3) Chan and Manetta^[9]. The study concluded that iatrogenic femoral nerve injury is most frequently caused by abdominopelvic operations. It identified as a major risk factor a transverse abdominal incision.

(4) Loos and others^[10]. The study aimed to estimate the prevalence, risk factors and aetiology of post-Pfannensteil pain syndromes. The study was undertaken on patients who underwent a caesarean delivery or abdominal hysterectomy using a Pfannesnsteil incision in 2003 and 2004 at the Maxima Medical Centre, a teaching hospital in Veldhoven in Holland. In that teaching hospital, the procedure is performed with the use of a protocol that limits the length of the incision to 12 – 15 cm. The study received an 80% response rate which thereby yielded a population of 690 patients. About 21% experienced postoperative pain of which 70% experienced pain in lateral portions of the scar. The unreliability of the study method that was used was acknowledged, being based on the answers to a questionnaire sent to all relevant patients in the period being studied. The paper was referred to as being relevant by Mr Magos because of the use of an operating protocol in 2004 limiting the length of the incision

Law

37. I was inevitably referred to the classic test for medical negligence articulated in Bolam v Friern Hospital Management Committee^[11] and Bolitho v City and Hackney Health Authority^[12]. The classic test, as enunciated by McNair J, was set out in these words:

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice established as proper by a responsible body of medical men skilled in the particular are. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

This test was qualified with a gloss which has itself now become classic that is set out in the speech of Lord Browne-Wilkinson in these words:

"I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives -responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."

Parties' Submissions

38. Both counsel adopted the views and evidence of their respective gynaecological expert. The claimant's counsel contended that Mr Magos' views should be preferred because it was consistent with the literature cited in his evidence and no contrary literature was produced by Mr Tufnell despite his having undertaken a search himself. Moreover, Mr Tufnell's views lacked logic because the usual length, or the starting point for deciding upon the length, of an incision is 15 cm for simple or routine operations. A longer length can be seen from the literature to greatly increase the risk of nerve damage. Moreover, the length performed on the claimant was well outside the usual range and, had it been discovered during the operation that an extended length was required, the incision could have readily been extended during the operation. Reliance was also placed on Mr Booth's admission that he would not have performed an incision as long as 20 cm and that that length of incision was significantly longer than ordinarily performed for a hysterectomy.
39. The defendant's counsel relied on the acceptance by Mr Magos, Mr Tufnell and Mr Booth that each was unaware of the incidence or risk of IIN damage at hysterectomy requiring a transverse Pfannensteil incision. None of them would have advised a patient of this risk before performing a hysterectomy in 2004. No reasonable surgeon would have predicted that such damage would be sustained by a patient subjected to an incision whose length was 20 cm as opposed to 15 cm. None of the types of damage or harm referred to by Mr Magos as the reason for not extending the length of the incision beyond 15 cm came about. The cited literature should be discounted, all but the Bonney text book were American or Dutch in origin. It was accepted that no other United Kingdom textbook refers to an incision limit of 15 cm and there is no relevant guidance from the Royal College, both omissions pointing away from their being any such good practice in the United Kingdom.
40. Finally, Mr Tufnell was urged as being the more reliable expert. This qualitative assessment, it was urged, arose from his greater experience, the logical sustainability of his views and his reliance on the absence of any appropriate limiting protocol operating in the United Kingdom.

Discussion

41. It is first necessary to identify the practice that the defendant contended was applicable and which it was also contended as being one that the defendant adopted and then to ask whether there is a responsible body of medical men who accept that that practice was a reasonable one It was suggested by counsel for the defendant that the relevant practice adopted by the operating surgeon in this case was that it was acceptable to use an incision length of up to at least 20 cm in length (to which I should add: without curvature). I do not accept that that is a correct formulation of the practice that was applicable in this case, it is no more than a formulation of what the defendant actually did. The correct formulation of the applicable practice was that, as a guideline or starting point, the incision length should be no more than 15 cm. That length should only be increased if situations will arise or can already be seen to likely to arise that make it desirable, in the interests of the patient, to take that step.
42. The defendant's suggested starting point was not established by the evidence and is, in any event, illogical. The evidence of Mr Tufnell and Mr Booth was merely to the effect that the actual length was within the basket of acceptable lengths. Neither of these gynaecologists could identify the principle or basis for the operating surgeon's choice of an incision length as long as the length chosen save to offer the suggestion that it would have been supported by a wish to ensure that the length was sufficient to meet any unforeseen complications that might emerge during surgery.
43. The evidence shows that a starting point for the decision as to the incision length does exist. However formulated, it is clear that a gynaecologist when performing a hysterectomy starts with a length in mind and then decides whether the nature of the intended operation, the physical constraints of the particular patient and any other clinically relevant factor warrants a lengthening or a shortening of that starting point. There are surgeons, particularly amongst those trained by someone trained some years ago, who do not think in terms of a precise figure and who do not quantify their starting point in numerical terms. Such surgeons do, however, have a length in mind, albeit a length which has been identified by eye and not be numerical length. Thus, whether the starting point is determined by eye or by number, it is clear that the starting point for a Pfannenstiel incision is one whose physical length does not in fact exceed about 15 cms. It is also clear that a surgeon must consider any relevant factor which might lead to an enhancement of that length and should also seek to limit any increased incision length as much as reasonably possible, having taken all factors into account which might dictate an extension of the length, so as to avoid risks and post-operative complications.
44. It is also clear that, in undertaking this exercise, a risk assessment should be undertaken which balances the risk of harm against the benefits to be gained from an extension of the length from the surgeon's visual or numerical starting point. The articulated potential benefit in this case was to ensure that all possible complications that might emerge during the operation could be accommodated. However, all foreseeable complications were already known about, given the diagnostic work undertaken before the operation. Furthermore, the evidence suggested that experience has shown that there is a very small risk of an unforeseeable complication occurring during the operation that necessitated prolongation. Moreover, as Mr Magos stated in evidence, if an unforeseen complication occurred during the operation, the incision length could safely be lengthened in mid-procedure. This last view of Mr Magos was neither met nor challenged by Mr Tufnell.
45. Finally, the evidence clearly showed that, for some years, it has been appreciated that there is a direct link between incision extension and increased risk of harm or damage to the adjacent nerves. Thus, the surgeon should seek to minimise that risk as far as reasonably possible. The defendant's counsel argued that the risk of IIL damage was not foreseeable. However, the evidence shows that nerve damage was acknowledged to be a risk well before 2004. Moreover, any physical damage caused by the incision, being damage to any organ or body part within the proximity of the incision at its extremes, was or should have been in the contemplation of the surgeon.
46. When these considerations are given effect to, the answer to this case becomes clear. That is that no articulated or logical reason was put forward for the surgeon to extend the length of the incision in the way it was extended. No risk assessment was carried out to balance the risk of harm that could arise from a normal sized incision against the risk of harm to nerves generally including the IIN. Furthermore, no limiting curvature was provided. The surgeon appears, possibly from inexperience, to have used an unusually lengthy incision because that was a length her relatively youthful operating technique felt comfortable with.
47. The defendant prayed in aid the evidence of Mr Tufnell and Mr Booth to the effect that they frequently use incision lengths that exceed 15 cms. Even if they do, and their evidence was not clear cut that they regularly used such a practice, its use might have been justified by the circumstances of the particular patient. Furthermore, such a practice, if generally operated to, would appear to be one which would not be preceded by an appropriate risk assessment. No surgeon can reasonably operate using a method which significantly increases the risk of harm unless that method is necessary for the greater good of the patient and unless there is no other reasonable way of achieving the desired results which would also reduce the risk of ancillary or collateral harm.
48. It follows that, applying the Bolitho gloss to the Bolan principal, that the claimant has succeeded in proving that there was a breach of the duty of care owed to her.

Foreseeability

49. The defendant sought to contend that damage to the IIN was not a foreseeable consequence of an unnecessarily extended Pfannensteil incision, certainly in 2004. Thus, it was argued, the damage was too remote and it could not found a claim in negligence.
50. That contention is unsustainable. Firstly, by 2004, it was certainly appreciated that there was a risk of nerve damage occurring from an incision which extended to the nerve sites at the end of an extended Pfannensteil incision. Secondly, the remoteness test in this type of case is related to physical harm to adjoining body parts and does not require the foreseeability of a particular type of nerve injury. The risk of physical harm from a Pfannensteil incision was known about for many years. That was why, by numerical means or by eye and experience, surgeons start with a length of about 15cm (or less). Thus, even if news of the IIN nerve being at risk had not travelled to, or been appreciated by, those undertaking hysterectomies using the Pfannensteil incision by 2004, such surgeons had been, or should have been, aware of damage of a sufficiently similar kind for many years and it was their duty to seek to avoid such damage by limiting the length of the incision as much as was reasonably possible.

Avoidance of Harm

51. The defendant finally contended that the claimant had not established that a shorter incision would have avoided the damage to her IIN that she suffered. That contention is also unsustainable on the evidence. It is not necessary to go further than the expert gynaecologists' agreement. They agreed that it was possible the injury could have occurred with a shorter incision but that would be less likely. Moreover, the recorded incidence of IIN injuries is still very low. This can only be because it is sufficiently unusual for an incision to extend out far enough to be within range of damaging an IIN nerve. Thus, on the evidence, the claimant has established on the balance of probabilities that she would not have suffered IIN damage had the incision not exceeded about 15 cm in length and had it, at the same time, been curved in accordance with normal practice.

Overall Conclusion

52. The claimant is entitled to succeed on liability and to recover damages in the agreed amount.

Note 1    Bonney’s Gynaecological Surgery, 10th Edition (Eds. Monaghan JM, Lopes T, Naik R), Blackwell Publishing Oxford 2004. The extract is on pages 63 – 64.    [Back]

Note 2    Bonney’s Gynaecological Surgery, 10th Edition (Eds. Monaghan JM, Lopes T, Naik R), Blackwell Publishing Oxford 2004, page 54.    [Back]

Note 3    Victor Bonney (1872 – 1953) is regarded by many gynaecologists as the father of modern gynaecological surgery. He was responsible for the first six editions, the sixth edition being published in 1952. Bonney’s technique in performing subumbilical mid-line incisions is described in the current edition.     [Back]

Note 4    See paragraph 9 above.    [Back]

Note 5    9th Edition (Eds. Burke JJ II, Gallup DG, Incisions for gynecological surgery in Te Linde’s Operative Gynecology, Philadelphia 2003, page 255. The 4th edition of this work is described in the 10th edition of Bonney as “This is one of the great standard textbooks of gynaecological surgery with excellent descriptions of the methods of entering and closing the abdomen”.    [Back]

Note 6    “Nerve injury at abdominal hysterectomy” in British Journal of Obstetrics and Gynaecology August 1995, Vol. 102, pp. 665 -666.    [Back]

Note 7    “The Low Transverse Pfannenstiel Incision and the Prevalence of Incisional Hernia and Nerve Entrapment” in Annals of Surgery, 1997, Vol. 225, No. 4, pages 365 369.    [Back]

Note 8    See, for example, the studies referred to in footnotes 14 – 18 inclusive and 27 and 28. These articles were not adduced in evidence or otherwise referred to during the trial.    [Back]

Note 9    “Prevention of femoral nerve injuries in gynecological studies” in American Journal of Obstetrics and Gynecology, January 2002, Vol. 186, number 1, pages 1 – 7.    [Back]

Note 10    “The Pfannenstiel Incision as a Source of Chronic Pain” in Obstetrics and Gynecology, April 2008, Vol. 111, No. 4, pages 839 – 846.    [Back]

Note 11    [1957] 1 WLR 582 at page 587, HL    [Back]

Note 12    [1998] AC 232 at pages 241 - 242, HL.    [Back]