Brown v The Scarborough & North East Yorkshire Healthcare NHS Trust

In assessing medical negligence, the court must identify the applicable professional practice and determine whether it has a logical basis. A practice is not reasonable merely because a responsible body of doctors supports it. Where risks and benefits are relevant, the experts must have addressed the comparative risks and reached a defensible conclusion. A surgeon should limit an operative incision as far as reasonably possible and extend it only where clinically justified. Foreseeability concerns the relevant physical harm, rather than the precise mechanism or type of nerve injury. Causation may be established on the balance of probabilities where a shorter procedure would have made the injury less likely and the evidence supports that conclusion.

The claimant suffered chronic pain and sensory disturbance following an abdominal hysterectomy performed at the defendant’s hospital. The injury was attributed to damage to the left ilio-inguinal nerve during a Pfannenstiel incision. Liability, causation and remoteness were disputed. The central issues were whether the incision was performed without reasonable skill and care, whether nerve damage was reasonably foreseeable, and whether a shorter and properly curved incision would probably have avoided the injury.

1. Breach of duty. The applicable practice was that an incision for this operation should begin at approximately 15 cm, or an equivalent length judged by eye. It should be extended only where the patient’s circumstances or anticipated clinical needs justified extension, and the extension should be limited as far as reasonably possible (paras [42]–[44]).
2. The court applied the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and the Bolitho v City and Hackney Health Authority gloss [1998] AC 232. A supporting body of professional opinion had to demonstrate a logical basis, including consideration of comparative risks and benefits (para [38]).
3. No logical or articulated reason justified an incision of about 20 cm in this uncomplicated case. The evidence did not establish an appropriate risk assessment. The unnecessarily lengthy, straight incision increased the risk of nerve damage and constituted a breach of duty (paras [45]–[49]).
4. Foreseeability. It was unnecessary to foresee injury specifically to the ilio-inguinal nerve. The foreseeable risk was physical harm to body parts adjoining the incision. Nerve damage associated with extended incisions was sufficiently recognised by 2004 (paras [50]–[51]).
5. Causation. Although injury was possible with a shorter incision, it would have been less likely. On the balance of probabilities, a shorter incision of about 15 cm with the usual curved ends would have avoided the injury (para [52]). The claimant therefore succeeded on liability and was entitled to recover the agreed damages (para [53]).