IN THE ROYAL COURTS OF JUSTICE - QUEENS BENCH DIVISION

PLYMOUTH DISTRICT REGISTRY

Case No: 3PL90028

Strand

London

WC2A 2LL

Wednesday, 11th May 2016

Before:

HIS HONOUR JUDGE COTTER Q.C.

B E T W E E N:

SUSAN EDITH MOORE

and

PLYMOUTH HOSPITALS NHS

Transcript from a recording by Ubiqus

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MS MICHELLEFANNERANappeared on behalf of the Claimant

MSCAROLINE HARRISON Q.C. appeared on behalf of the Defendant

JUDGMENT

HHJ COTTER Q.C.:

  1. This is an application for relief from sanctions. The claim is a clinical negligence action arising out of the alleged negligent medical treatment of the claimant on 19 August 2009. During the course hip replacement surgery, the claimant, then aged 54, suffered a severe injury to the left femoral nerve. The trial is listed on 6June2016, so some 17 working days from today; now being restricted to a three- to fourday trial, quantum having been agreed in the sum of £950,000.
  1. As for the detail of the surgery, it was intended to be minimally invasive, i.e. with a short incision, although the actual length of the incision remains in issueand otherwise a routine procedure. An anterior approach was used. During the surgery, the acetabular component had to be revised because the first socket became displaced. The surgery lasted at least two and a half hours, which was significantly longer than normal. It is not in dispute that the femoral nerve was injured during the operation. The claimant’s case was initially pleaded with allegations of negligence that can be broadly broken down into three themes. Firstly, there was a lack of consent. Secondly, that there was negligent surgical treatment, i.e. negligent surgery, and thirdly, lack of training or experience on the part of the surgeon. However, the claimant withdrew the first and third of these themes, notifying the defendant before a case management conference as long ago as November 2014and formally withdrawing them in a reply in December 2014.
  1. This left the sole allegation of negligent surgical technique or negligent surgery. That was pleaded at paragraph 31.1 as failing to take any or any adequate steps to protect the femoral nerve during the minimally invasive anterior approach surgery, and at 3.3, causing injury to the nerve whether by (i), a direct injury as a result of one or more instruments making contact with the nerve, (ii), using excessive force when retracting tissues with a view to providing exposure, and (iii), retracting tissues for an excessive period of time without taking any adequate steps to reduce or eliminate the consequences of the prolonged retraction. At 31.4, it is said there was a failure to take any or adequate care when applying the retractors to ensure that the femoral nerve was protected.
  1. Within the allegation of negligent surgical technique, there were two subthemes;failure to protect the nerve and negligent use of the retractors. It was and is a specific allegation within the pleaded case that the retractors were used for an excessive period of time without any steps being taken to eliminate the consequential tension upon the nerve. As I have set out, the claimant restricted the case prior to the case management hearing on 29November2014. For that case management hearing, there was an agreed case summary. The agreed case summary set out that it was the claimant’s case:

‘Limited to the allegation that the surgery itself was carried out negligently and that the injury was caused by the incorrect retractor placement, excessive retractor force being applied to the tissue around the incision, which includes femoral nerve, or by retractors being applied for excessive periods of time, especially when it became clear interoperatively that the acetabular component required revision leading to the operation so considerably longer than would have been usual’.

  1. An outline of the defendant’s case is also set out in that agreed summary. It was set out that the defendant’s case was that minimally invasive surgery such as this ensured that the femoralnerve is protected insofar as is reasonably possible, that the nerve injury is a wellrecognised complication, that the surgery lasted, it was admitted three and a half hours, longer than to be expected but that was as a result of a need to reinsert a larger femoral component. For the sake of completeness, I should add the defence had not addressed the specific allegation of the retractor being applied for an excessive period of time. As regards paragraphs 31.3 and 31.4 in the particulars of claim, it was stated within the defence that:

‘The claimant is required to prove the precise manner in which the femoral nerve was severed but in any event, nerve injury is a well-recognised complication in hip replacements. The claimant was adequately informed of this and duly consented to the procedure. The procedure was performed with reasonable care and skill. As a matter of law,then it is not liable in circumstances where a recognised complication for surgery materialises in these circumstances’.

  1. Although there was no response to direct allegation that no steps were taken to eliminate the effects of long duration in terms of use of retractors,given the experience and expertise of the defendant solicitors, I consider it is highly unlikely that when asked to comment upon the allegations in the particulars of claim, Mr Fekry as the surgeon did not have his attention drawn to specific allegations of negligence and a need to consider each separately and to reply. It is of some interest that it was specifically admitted in the defence that the operation took three and a half hours as alleged in the particulars of claim, despite the existence of a surgical record which is now, perhaps not surprisingly, relied upon.
  1. So as long ago as 2014, the pleadings and the summary underlined the issue of the duration of retractor use as a central to the Claimant’s case as to breach of duty.
  1. It is not necessary for me to deal with the chronology of this matter in great detail but I should also add the following dates. On 26 March 2015, District Judge Griggs made an order, inter alia, that lay witness evidence be served by 10 April 2015. The order specifically recites that oral evidence will not be permitted at trial from a witness whose statements have not been served in accordance with the order. In terms of the exchange of expert evidence, District Judge Griggs set a date but the period before exchange was subsequently extended byDistrict Judge Field and then DistrictJudgeLeech.
  2. Eventually, on 26 June 2015, factual statements were exchanged, so at the time of the signing of his witness statement dated 25 June, Mr Fekry had access not only to the pleadings but also to a report from an expert retained on behalf of the defendant, Mr Atkins. At Sections6.1(4) and 6.1(5) of the report, Mr Atkins had referred to retraction as the usual cause of nerve damage.
  1. The statement is one of some length. It sets out at paragraph eight that he had available to him and he used special instruments designed for a minimally invasive anterior approach and a 10cm incision was made. It deals with the detail of his procedure in terms of what he did and relevant sizes and measurements.
  1. At no stage was any reference made to retractor use or to releasing the pressure caused by retraction during the course of this prolonged operation. He said that the surgery took longer than expected and the average surgery time was usually 90 minutes, but did not set out exactly how long it was. That he had in mind the pleaded case cannot be in doubt because at paragraph 17, towards the end of the witness statement, he says:

‘I understand that the claimant is alleging that the injuries to the femoral’ and he missed the word ‘nerve’ out, ‘occurred as a result of a direct injury to the nerve through using excessive force when retracting tissue with a view to providing exposure and/or from retracting the tissues for an excessive period of time without taking adequate steps to reduce or eliminate the consequences of prolonged retraction. Minimally invasive surgery is carried out between the muscles and does not involve splitting or detaching muscles from the usual anatomical positions. The technique is to be used within the [inaudible], the latter muscle which [by its nature protects the?] femoral nerve but other[?] excessive retraction was not used at any stage during this procedure’.

  1. It is somewhat strange, to say the least, that there was no specific mention of the use of retractors in the statement
  1. I should point out that the 10cm incision referred to is longer than the usual for minimal surgery. Both experts have measured the scar at 9cm, consistent with minimally invasive surgery but shorter than Mr Fekry states it was. In any event Mr Thackery clearly sets out in the first witness statement that the incision was long enough for the process.
  1. In due course, on 2October2015, liability reports were exchanged. Mr Brindle, the expert on behalf of the claimant, refers to the likelihood of injury being caused by retraction. He specifically sets out at paragraph 10 of his report that, given that retraction is an important cause of nerve injury, it would be reasonable to suggest this prolonged surgical time will have increased the risk of nerve injury. The surgeon should certainly be aware of this. He will certainly consider extending the length of the wound and making sure that the retractors were relaxed when he was not directly working on the acetabular. It would be reasonable to suggest that, if such steps had been taken, on the balance of probability, the nerve injury would have been avoided. He also set out that he would expect during the course of a 90-minute hip operation that 15 minutes would be taken with surgical exposure, 30 minutes working on the joint with the retraction, 30 minutes on the femur, and 15 minutes closing the wound. He made the suggestion that, in this particular case, given the difficulties encountered, it would be reasonable to suggest that the majority of the extra time was spent working on the acetabulum.
  1. On 2 October 2015, the claimant also served a schedule seeking an increased value of £1.35m. So the defendant has the report of Mr Bridle and the increased schedule on 2October 2015. However the report of Mr Brindle was only sent to Mr Fekry in December. There is no explanation for this delay.
  1. On 1 February, Mr Fekry supplied the defendant with some further information in response to sight of the report. A letter is annexed to the witness statement of Ms Hemming, revealing that the letter that was received on 1 February. Within that letter, MrFekry states, this is of Mr Bridle’s report

‘He also suggested that an excessive retraction was used, which is not the case. The retraction is always released whenever I was not actively working on the acetabulum. This is always practiced as part of basic surgical technique and it was practiced during the case’.

He continued later on:

‘The extended operation time has no bearing on the causation of nerve injury in this case. The exposure of the acetabulum took place up to [inaudible] slight pressure on a nerve which is inevitable would not have been sustained all the period of exposure. The same precautions during retractor placement, gentle retraction and releasing retraction intermittently would have been applied’.

  1. It is now known that a conference with Ms Harrison, leading counsel, took place on 12February 2016. It is said in the defendant’s application to have been at the earliest opportunity but there is no explanation as to why this was so, bearing in mind, as I have said, that the schedule and the expert’s report were served on 2 October 2015.
  1. Following the conference on 12 February 2016, despite full knowledge of MrFekry’s explanation and response, and appreciation that the matters he was setting out were neither pleaded nor in his witness statement, no mention was made to the claimant that some new evidence might be forthcoming. Indeed, the claimant continued in blissful ignoranceof any change in the Defendant’s case and the case seemed to be progressing in the ordinary way.
  1. In March, there was an application for each party to amend the costs budget to cater for leading counsel. On 4 March, thedefendant’s listing questionnaire was filed. The claimant’s questionnaire came slightly later. There were then discussions between leadingcounsel as to the agenda for the experts. For reasons that I will return to, the defendant continued throughout to fail to alert the claimant of the position as regards Mr Fekry’s evidence.
  1. With the date for experts to produce a joint report of 2nd May almost upon the Defendant, on 28th April the application now before me was made for relief from sanctions. I should add that today’s hearing, 11thMay, was already listed but it has been extended to cater for the application.
  1. By the application for relief from sanctions the Defendant seeks to rely upon the supplemental statements of MrFekry dated 25 April. The application also seeks extended time for the orthopaedic surgeons to meet, up to 20 May or just over two weeks before the trial, giving the parties only a week and a half to digest the content.
  1. As for the evidence on the application before me, there is evidence on the statement itself from MsFanneran. There is a statement in response from Mr Tassart on behalf of the claimant, much of it setting out argument. Yesterday, a statementfrom Ms Hemming, was served on behalf of the Defendant.
  1. It is necessary to consider briefly the content of Mr Fekry’s witness statement. Its states out as follows.

‘Having read Mr Brindle’s report, I can see he has taken the lack of reference of steps to protect the femoral nerve in my previous statement and my operation notes as meaning I did not take any steps to protect the femoral nerve. This is not correct. I thought it would help the court to set out what my standard practice is to protect the nerve. I can confirm that I am always extremely careful when placing the anterior retractor over the front of the acetabulum as this is such an important part of surgical technique but I always release the retractor whenever I am not actively working upon the acetabulum. This is something I always practice as part of my basic surgical technique and this is what I did during the claimant’s surgery. These are such basic surgical steps I always undertakeI did not consider it necessary to mention in my previous statement, as I assumed it would be understood that they were done’.

  1. He then refers to the surgical incision. He did not return to its length but states that he had a clear view of the acetabulum and did not agree that it required to be extended. He then says he would like to take the opportunity to point out the length of the procedure was actually two and a half hours, and not three and a half as suggested by Mr Brindle. I pause to observe, he does not point out or in any way deal with thefact that it is admitted in the defence that the operation took three and a half hours. He continues in relation to retraction setting out that:

‘The acetabulum was exposed twice during the procedure ……..anterior retraction was required to facilitate the exposure of the acetabulum but I did not sustain this for the entire period of exposure. I applied the precautions I have set out before regarding retractor placement having gentle retraction and releasing retraction intermittently’.

He finally says that anterior retraction would have been brief because he always relaxes the retractor when not working directly on the acetabulum, and furthermore, anterior retraction is not necessary or possible for the majority of the time.

  1. So Mr Fekry advances for the first time a detailed response on the central allegation; retractor use.
  1. On the application, Ms Fanneran sets out the history that sets out that the secondwitness statement of Mr Fekry is needed for three reasons. Noting it explains more fully the surgical technique, particularly his use of retractors, Ms Fanneran states:

‘As would be ordinarily expected in cases of this sort, in consultation, Mr Fekry was able to explain and describe more fully his surgical technique. He was also able to respond to the new issue raised in MrBridle’s report, namely that the incision should have been extended to improve exposure’.

  1. She states that Mr Fekry says that the reason he did not explain his technique on intermittent application of retractors and their release when he was not actively working on the acetabulum previously was because it was such a basic technique is that he took it for granted that it would be understood by any other surgeon.
  1. It is also said that a statement is needed to deal with the length of incision and the length of the operation and, further, that these matters would inevitably come out in oral examination in any event.
  1. In response Mr Tassart in his statement points out that a statement is not needed to address the incision length because it is dealt with in the first witness statement and he points out that according to the experts, Mr Fekry is wrong in his evidence in any event.