Scottish Court of Session Decisions

The pursuer, who is aged 39 years, sued the defenders as responsible for the alleged negligent actings of their then orthopaedic surgeon Mr Patrick McNally in the conduct of a hip replacement operation he undertook in December 1990. As a result of that operation it was agreed that the pursuer sustained damage to his sciatic nerve which has left him with a permanent disability. The pursuer had suffered for many years from sero-negative arthritis and had considerable disability. He suffered from severe lack of mobility and pain in his joints and in particular in his hips. In order to relieve that pain bilateral hip replacement was advised and agreed. The left hip was successfully replaced by Mr McNally in August 1990.

Counsel sensibly agreed various matters in the case, thereby curtailing the evidence and, in particular, agreed damages in the sum of £11,000. The agreements made it unnecessary for the pursuer, who was by the time of the proof confined to a wheelchair, to give evidence.

The pursuer led the evidence of the surgeon he accused of negligence, Mr Patrick McNally, and that of another Consultant Orthopaedic Surgeon, Mr David Allan. The evidence of Dr Andrew Weir, Consultant Neurophysiologist, founded on by the pursuer, consisted of two agreed medical reports, Nos.20/1 and 20/2 of process. The defenders led evidence from Mr James Christie, Consultant Orthopaedic Surgeon.

The evidence about the actual operation to the pursuer was solely that given by Mr McNally. The relevant hospital records which contained Mr McNally's operation notes were produced. It was on the basis of these notes that the pursuer felt able to contend that Mr McNally had been negligent in the conduct of the operation.

Both counsel agreed that the relevant standard of proof of negligence in relation to a professional man was that described in Hunter v Hanley 1955 SC 200 and in particular the question to be posed following the dictum Lord President Clyde i.e. has the doctor been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care?

The pursuer first led the evidence of Mr McNally, the operating surgeon who described the normal conduct of a hip replacement operation. He had had considerable experience, having conducted about 1000 such operations. He stressed the importance of avoiding damage to the sciatic nerve which, even in the normal person, lay in reasonable proximity to the joint which he proposed to remove and replace. His recollection of the exact details of the pursuer's operation, not surprisingly after the lapse of time which had occurred, was not precise. Counsel attempted to attack his reliability by asking for his recollection prior to referring him to his operation note (16/2 p.48). His unaided recollection was that he did remember that there was a problem because of the abnormal position of the nerve and that it had been protected by pulling over the short rotator muscles. He said "what I remember was the abnormal condition of his nerve, noted at the time, and (I was) particularly careful from the moment I saw the nerve knowing it to be a little more difficult."

When he referred to his note he was challenged on the basis that there was no reference to the protection of the nerve therein. His response was that it would be bizarre in the extreme if it had not been protected. Accepting that one could not ascertain from the note the precise care he had taken, and accepting some criticism in that regard, his evidence was that he could not have carried out the procedure without moving and protecting the nerve. There was no gross injury to the nerve at the end of the operation. It was seen to be intact. He explained that the word "seemed" should have read "seen" in his dictated notes and I accept his evidence on that matter. Having explained that there was no gross injury he was hopeful that there had not been any microscopic injury. He stated that he "had a recollection" of being very careful with the operation and explained that his observation at the end of his operation note about the nerve remaining very close to the acetabulum, was a warning to himself (or to any other orthopaedic surgeon) that should there be a dislocation after the hip operation a closed reduction should not be carried out and that there would have to be an open reduction. He said that there was a risk, however skilfully the operation was carried out that there could be damage to the nerve, but that such damage, being microscopic, or described as bruising, should normally recover. The effect of his evidence was that damage such as a gross lesion, severing or over-stretching would be of a different order of severity and would be differently described.

He was questioned about post operative care and about what information was given to the pursuer in relation to the effects by the operation, but I do not consider that adds anything to the case. Mr McNally remained optimistic, for so long as he remained at the Hospital, of a good recovery. Mr McNally had to retire early as a consequence of a vehicle accident in February 1993.

His comment in relation to the suggestion that he had failed to take steps to protect the nerve, that such a thing would be bizarre in the extreme was supported by Mr Christie who said that, having noticed the position of the nerve it would be extraordinary if he had not taken care. It would be incomprehensible for a surgeon not to try to move the nerve, Mr Christie said. When it was suggested to him that such a failure would be negligent he said "Yes, and unthinkable".

The case which was mounted against Mr McNally came from the evidence of Mr David Allan who has operated as a consultant orthopaedic surgeon in Glasgow since 1989. He specialises in hip surgery. He sat in court when Mr McNally gave evidence. During his evidence in chief, in reply to the court, he asserted that if the sciatic nerve was bruised in the course of a hip replacement operation that would be negligent. His evidence in cross-examination however amounted to an admission that his view that there was negligence in the conduct of the operation rested entirely upon the operation note. His criticism was that there was nothing in the note as typed which indicated that any steps had been taken to protect the nerve and he also suggested that a more extensive approach would have been more appropriate. He also criticised the pursuer's post operative care. His overall view was that Mr McNally had failed to move the nerve out of the operational field. He had in his opinion No.14/1 of Process laid some stress on the part of the note containing the mistyped "seemed" as perhaps indicative of such want of care. That criticism fell away when "seem" was substituted. He was reluctant, but eventually did accept, that there was a risk in his operation of sciatic nerve palsy in a number of cases. He thought it was less than 1% and suggested that the figures in that 1% might also include negligent conduct. I do not accept Mr Allan's analysis and use of the operation note, or his criticism of the post operative care. He was not justified in asserting that Mr McNally had failed in his duty of care in the conduct of the operation merely from operation notes.

Mr Christie, a consultant orthopaedic surgeon in Edinburgh since 1970, gave evidence to the effect that in the best conducted study a risk of sciatic nerve damage of 1.7% had been identified in routine operations on persons without risk factors. There are also patients at greater risk. The pursuer, he said, was one of these because of his sero-negative arthritis. That disease distorts the joints. There could be a flexion contraction in the hip joint which could affect the position of the nerve relative to the joint. He said in relation to Mr McNally's operation notes that there was no warrant for the suggestion that it had been negligently carried out or that a more extensive exposure was required. Such exposure could only have been in the downward direction and would have added nothing to what the surgeon already knew.

In her closing submission counsel for the pursuer accepted that the onus was on the pursuer to prove negligence, she disclaimed, properly in my view, any reliance on res ipsa loquitor and accepted that if Mr McNally's evidence was accepted the pursuer's case must fail. I did accept Mr McNally's evidence and, as counsel predicted, the pursuer's case fails. The pursuer's case fails because he has failed to establish that the damage to his sciatic nerve was caused by want of care on the part of Mr McNally. It has to be accepted that the mere fact that damage occurred is not of itself evidence of negligence. There is no other material in the present case which warrants an inference of negligence. It is not appropriate, in my view, to look to see what is not said in an operation note and to construct an edifice out of that omission in an effort to infer negligence. Operation notes are just that, notes. There may be omissions in them, but they are idiosyncratic and peculiar to the individual surgeon. I accept that Mr McNally saw that the sciatic nerve was in a position of difficulty for the operative procedure. He was justified, according to Mr Christie, whom I accept, in proceeding with the operation and I also accept that it would be unthinkable that he took no steps to protect it. No doubt carelessness can occur in an operation, but in order to establish such against Mr McNally the evidence would require to be something beyond some omission in the operation notes. I cannot hold it established on the evidence before me that Mr McNally departed from normal practice or that he conducted his operation in a way that no competent orthopaedic surgeon would have done if he had been taking reasonable care. The pursuer has failed to establish what failure in technique, if any, there was and he has also failed to establish what the deviation, if any, in normal practice was, and accordingly the defenders are entitled to absolvitor. I record that I was referred to a case Bentley v Bristol and Weston Health Authority (NO.2) [1991]3 Med LR 1. In that case a similar operation was held to have been negligently conducted by over stretching the nerve. In his opinion Mr Justice Waterhouse said that res ipsa loquitor was applicable. I would not have so found. Res ipsa loquitor would not in my view apply to an occurrence under direct human control. Nor, in any event do the authorities, wrongly cited in that report, justify such an application. I shall accordingly sustain the defenders' second plea-in-law, repel the pursuer's pleas and grant decree accordingly.