OXR v Mid and South Essex Hospital NHS Foundation Trust

In a clinical negligence claim, the claimant must prove the mechanism of injury on the balance of probabilities before breach can be established. Where an instrument directly contacts and damages an anatomical structure during surgery, the precise number of contacts or the exact point of initial damage need not be proved if the operative mechanism and breach are established on the evidence. Under Bolam, as qualified by Bolitho, proceeding with inappropriate technique or excessive force, despite resistance indicating imminent damage, falls below the required standard. A surgeon who uses gentle manipulation, remains alert to resistance and would stop if damage appeared imminent is not shown to have breached the duty merely because injury occurs.

OXR, aged five, underwent emergency surgery to remove a glass foreign body from his right ear. During the operation he sustained perforation of the tympanic membrane and disruption of the ossicular chain, resulting in permanent conductive hearing loss.

The claim alleged that either of the two ENT surgeons had negligently caused the injury while attempting to remove the object. The court determined the mechanism of injury, breach of duty and causation, together with interim and past losses. The final assessment of general damages and the multiplier was adjourned because of the claimant’s recent cancer diagnosis and uncertainty concerning life expectancy.

1. Liability. The claim succeeded. The court found on the balance of probabilities that the ossicular damage occurred in theatre before the consultant surgeon took over, while the trainee surgeon was attempting to manipulate and remove the foreign body.
2. The damage was caused by direct contact between a wax hook and the ossicles, rather than by indirect movement of the foreign body. The operating surgeon should have felt resistance from an intact tympanic membrane or ossicular chain before causing disruption. The trainee either failed to recognise that resistance or continued despite it.
3. The exact number of contacts and the precise point at which the chain first weakened did not need to be established. The breach consisted in direct instrumental contact causing damage, through inappropriate technique and/or excessive force. The injury was a reasonably foreseeable consequence of pulling on the malleus once the instrument entered the middle-ear structures.
4. The applicable standard was determined under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, subject to the additional qualification in Bolitho v City and Hackney Health Authority [1997] UKHL 46. No breach was proved against the consultant. His evidence that he used gentle manipulation, felt no resistance and would have stopped if resistance indicated impending damage was accepted. His decision not to adopt more invasive procedures was supported by a rational risk-benefit assessment.
5. Causation was not disputed once the ossicular chain had been disrupted. The claimant was awarded £2,535.32 for past losses and interest, together with interim general damages of £10,500 and interest. Final general damages and the multiplier were adjourned pending greater certainty about life expectancy.