Drawing inferences in surgical claims

The England & Wales Court of Appeal yesterday handed down its decision in a surgical injury case (left femoral nerve damage), focusing on whether there was an evidential basis for the trial judge’s decision and or whether he drew impermissible inferences: O’Connor v The Pennine Acute Hospitals Trust [2015] EWCA Civ 1244.

The claimant required surgery to repair a vesicovaginal fistula. When she awoke from the anaesthetic her left leg was numb and there was a loss of motor function, with later onset of pain: [12]. Later testing showed severe left femoral neuropathy: [13]. The surgeon sent a letter to the referring general practitioner, in which there was a suggestion that the nerve may have been entrapped in an area where the sigmoid colon required dissection from the vaginal side of the fistula: [14]. The method of use of a retractor was considered.

The Court of Appeal at [58] onwards discussed res ipsa loquitur (finding that the judge did not use that pathway) and an alternate explanation for the nerve damage,  relating to anaesthesia. The Trust argued that surgical nerve damage was one of two possible, but unlikely, explanations: [90].

There was no dispute that if the surgeon directly injured the femoral nerve during dissection, that would be negligent.

The appeal by the Trust was ultimately dismissed.



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