Smith v Southampton University Hospital NHS Trust

In clinical negligence, a recognised surgical complication does not itself establish substandard care. The court must determine, on the balance of probabilities, how the injury occurred where the evidence permits a finding, even if the mechanism is reconstructed from the surgeon’s account and expert experience. Where responsible medical opinions conflict, the judge must engage with both opinions and explain why one is preferred. It is insufficient simply to rely on the preferred expert’s standing as representative of a responsible body. The Bolam approach remains applicable to decisions made during an operative crisis, even where a specialist might have achieved a better result. On appeal, the court may substitute a liability finding and remit quantum where a retrial would be disproportionate.

The appellant suffered serious injuries during a radical hysterectomy and pelvic lymph-node dissection performed by surgeons employed by the respondent Trust. The right obturator nerve was severed, and the left external iliac vein was perforated and subsequently narrowed during attempted repair.

A deputy judge of the High Court dismissed the medical-negligence claim. The appeal was confined to the allegations that the obturator nerve had been damaged through substandard surgical technique and that the vein had been negligently over-sewn. The central issues were whether the evidence established how the nerve injury occurred, how conflicting expert opinions should be evaluated, and whether the attempted vein repair fell below the applicable standard of care.

1. Disposition. Wall LJ’s judgment, with which Leveson LJ and Sir Mark Potter P agreed, allowed the appeal concerning the obturator nerve but dismissed it concerning the repair of the external iliac vein.
2. Obturator nerve. Damage to the nerve was a recognised complication, but that fact did not itself establish negligence. Mr Nieto’s evidence provided a sufficient basis for finding, on the balance of probabilities, that he had used partially open scissors while their tips were out of view and had thereby damaged the nerve. The evidence accorded with the experience of both experts and represented the most likely explanation. The deputy judge should have made that factual finding.
3. There was a material conflict between the experts on whether the described technique was substandard. The deputy judge preferred Mr Monaghan’s opinion but failed to address Mr Soutter’s contrary evidence or explain why it was rejected. It was insufficient to rely merely on Mr Monaghan’s status as representative of a responsible body of opinion. The deputy judge also misunderstood the evidence about anatomical difficulty and wrongly relied on Delaney v Southmead Health Authority [1995] 6 Med LR 355. Her exoneration of Mr Nieto was therefore unsustainable, and the Court of Appeal substituted a finding of negligence.
4. External iliac vein. The initial damage was not challenged as negligent. In the operative crisis, Mr Boyd’s decision to place additional sutures after the Z stitch failed, examine the leg, and then call a vascular surgeon was supported by Mr Monaghan as reasonable practice. Applying the Bolam test in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, the deputy judge was entitled to find that the conduct was not negligent. The possibility that an immediately summoned vascular surgeon could have achieved a better repair did not establish substandard care.
5. Disposal. A retrial of the nerve allegation would have been disproportionate in view of the costs. The court considered it open to substitute the liability finding and proceed to assessment of damages. Written submissions were invited on the final disposal and costs, with a consent order contemplated if agreement could be reached.

1. Court of Appeal (Civil Division) — In [2007] EWCA Civ 387, the appeal was allowed on the allegation concerning the right obturator nerve and dismissed on the allegation concerning repair of the left external iliac vein. Written submissions were invited on disposal and costs.
2. High Court — Miss Recorder Davies QC, sitting as a deputy judge, dismissed the medical-negligence claim on 3 July 2006.