Atkinson v South Tees Hospitals NHS Foundation Trust

In a clinical negligence claim concerning alleged nerve damage during hand surgery, the claimant bears the burden of proving breach on the balance of probabilities. A finding of nerve division may be based on the combined weight of clinical signs and expert evidence, even where individual sensory tests produce conflicting results. Division of the main branch of a nerve may be negligent where the reasonably competent surgeon should identify the injury and consider immediate repair. The division of smaller branches does not necessarily establish negligence where the pleaded breach depends on division of the main nerve.

The claimant alleged that the defendant’s surgeons negligently divided the ulnar digital nerve during a fasciectomy on 28 October 2008 and the palmar cutaneous nerve during carpal tunnel decompression on 18 April 2009. The defendant denied both allegations. The parties agreed the losses flowing from any established division, so the issues were whether either nerve had been divided and, in the case of the palmar cutaneous nerve, whether the main branch or only smaller branches had been affected.

1. The claim succeeded in relation to the ulnar digital nerve (UDN) and failed in relation to the palmar cutaneous nerve (PCN). The parties had agreed the appropriate damages arising from the established UDN division.
2. The claimant had to prove each alleged nerve division on the balance of probabilities. The court assessed the competing expert evidence, the contemporaneous clinical records and the results of sensory testing.
3. As to the UDN, the court preferred the evidence of Mr Shewring that there was no sweating on the ulnar aspect of the ring finger, supported by the recorded neurogenic changes and a positive Tinel’s test. The apparently contrary two-point discrimination and monofilament results were capable of being false positives in the presence of severe dysaesthesia. The claimant therefore proved that the UDN had been divided.
4. The court found that the failure to identify a UDN division during the operation fell below the standard of the reasonably competent doctor. The court accepted that the surgeons were honest and careful, but concluded that their belief that the nerve remained intact was mistaken.
5. As to the PCN, the claimant did not prove division of its main branch. The sensory disturbance was more extensive than expected from damage to that nerve, the examination findings were variable, and the court was not satisfied that a positive Tinel’s test had been demonstrated at the wrist. Division of smaller PCN branches could not establish the alleged negligence.