Royal Wolverhampton Hospitals NHS Trust v Evans

In a clinical-negligence claim, retention of extruded surgical cement, even a large quantity, does not by itself establish negligence or shift the burden of proof. Breach must be determined by close examination of the circumstances and the surgeon’s technique.

Where cement extrusion is a recognised and unpredictable risk, a surgeon must use a rigorous technique, maintain vigilance, and examine the operative area carefully whenever it is visible. A surgeon should not cut an extrusion without seeing what is being cut. An appellate court should be slow to interfere with factual findings based substantially on witness assessment, particularly where the findings are supported by the evidence.

The respondent underwent a left total hip replacement. A large piece of cement later discovered near the sciatic nerve had caused permanent nerve damage. Causation was conceded before trial, leaving breach of duty as the only live issue.

His Honour Judge Owen QC, sitting as a High Court Judge, held that the surgeon had failed to use the required vigilance and care when removing extruded cement. The Trust appealed, arguing that the judge had shifted the burden of proof, that his factual findings were unsupported by the evidence, and that the trial had been procedurally unfair. The central issues were whether the finding of breach was properly open on the evidence and whether any procedural irregularity had occurred.

1. Appeal dismissed. The Court of Appeal unanimously upheld the decision of His Honour Judge Owen QC.
2. The judge had correctly directed himself that the claimant bore the burden of proving breach. The fact that cement had been retained, even a substantial piece, did not itself justify an inference of negligence or shift any evidential burden to the Trust. The issue was whether the particular circumstances established that the surgeon’s performance fell below the acceptable standard.
3. The evidence established that extrusion, especially near the acetabular notch, was a recognised risk and that its extent could not be predicted. A rigorous surgical technique required vigilance and careful examination of the acetabular rim whenever it could be visualised. The cement would remain connected to the visible extrusion unless severed. If the surgeon cut the cement while using the pusher, he was working without a complete view. If he cut it after removing the pusher, he ought to have seen and examined the extrusion before cutting it. On either analysis, the judge was entitled to find that the required standard had not been met.
4. The published studies showed only that retained cement was common. They did not establish whether retention in any particular case resulted from negligence. The judge was entitled to examine the individual circumstances and to prefer the claimant’s expert evidence.
5. The appellate court could analyse the transcript but could not assess the effect of witness demeanour. The judge’s factual findings and assessment of the experts were supported by the evidence and disclosed no perversity warranting intervention.
6. There was no serious procedural irregularity. The surgeon was called as a witness of fact, not as an expert to give an opinion on whether his conduct was negligent. Failure to put to him that a particular action amounted to substandard practice did not render the trial unfair.

• Court of Appeal (Civil Division): appeal dismissed unanimously, [2015] EWCA Civ 1059.
• High Court, Birmingham District Registry: His Honour Judge Owen QC, sitting as a High Court Judge, held on 16 May 2014 that the surgeon had been negligent and that the respondent had suffered injury.