20.04.2007

Porter and Moxon Browne argue about surgeons' duties in Smith v Southampton University Hospital NHS

Smith v Southampton University Hospitals NHS Trust

On 3rd July 2006 the High Court delivered Judgment exonerating two gynaecological oncologists ("the surgeons") formerly employed by the Defendant trust of all allegations of negligence made against them in a claim for damages brought by the Claimant. The Claimant had been unfortunate enough to have cervical cancer and in October 2001 underwent a long complex operation known as a radical hysterectomy performed by the two surgeons.

The surgery successfully treated the cancer but the Claimant suffered two recognised complications of the procedure in that a nerve on the right side was damaged by one surgeon and a vein on the left was damaged by the other surgeon. Attempts to repair the damage were made. In the case of the nerve the severed ends were not effectively reunited. In the case of the vein damage, the stitching placed to stem the bleeding resulted in an unacceptable stenosis (blockage) which was only partially rectified by a specialist vascular surgeon called in to assist.

The Claimant was left with longstanding symptoms in her right leg as a result of the nerve damage and in the left leg as a result of the remaining stenosis. She made a substantial claim for loss of earnings and for care. On her behalf criticisms were made of the surgeons' care both in permitting the damage to occur and in not (earlier in the case of the vein or at all in the case of the nerve) calling for specialist assistance to effect a repair. It was said that the coincidence of two rare, albeit accepted, complications gave rise to an inference that the surgeons had not operated properly as a team.

Miss Recorder Nicola Davies QC sitting as a Deputy High Court Judge rejected all these criticisms. In evidence the surgeon who divided the nerve had proffered a suggestion that the tips of his scissors may have been inadvertently open. The Judge held that even if that was so it did not represent sub-standard surgery and further that it would be bold and unfair to make a finding of negligence based upon the surgeon's supposition of what may have occurred to bring about what is a recognised risk of carefully executed surgery. The Judge further found that the allegations relating to repair of the nerve failed.

Turning to the vein injury the Judge accepted the surgeon's account of how the vein had been perforated without any want of care. She further accepted the expert evidence called by the Defendant that it was appropriate for the surgeon to proceed as he did in stitching the vein. Neither the placing nor the quality of those stitches represented substandard care. Finally the Judge rejected the submission that the fact of the nerve and the vein damage indicated any failure on the part of the surgeons to work as a team.

Martin Porter of 2 Temple Gardens appeared for the successful Defendant instructed by Beachcroft's Winchester Office (Claire Sandercock)

Robert Moxon Browne QC of 2 Temple Gardens and Richard Cartwright appeared for the Claimant instructed by Pardoes (Guy Eskell).