Unprecedented injuries – negligence by anaesthetists not demonstrated: Heaton v Central Manchester and Manchester Children’s University Hospitals NHS Trust (Manchester County Court, April 2007 – Judge Armitage QC)

Clin Risk 2008;14:125-126
doi:10.1258/cr.2008.080027
© 2008 Royal Society of Medicine

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Unprecedented injuries – negligence by anaesthetists not demonstrated: Heaton v Central Manchester and Manchester Children’s University Hospitals NHS Trust (Manchester County Court, April 2007 – Judge Armitage QC)

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Mrs Heaton underwent an operation for the removal of a largetumour from a nerve within her skull – known as an acousticneuroma – on 3 November 2000. Unfortunately, as she recoveredfrom the anaesthetic, she became aware of a severe pain in herright arm, which had not been operated on, and it emerged thatall three of the nerves supplying the arm had been compromisedin some way by the anaesthetic.

It was common ground that before the introduction of generalanaesthesia to the arm, the limb had been unaffected. No criticismof the surgeon was made, either in respect of the procedureitself or the fact that the arm had been strapped in an unusualposition to aid access to the neuroma.

The operation had taken 10 hours – much longer than theusual two or three – because of the size and site of thetumour.

Nerve conduction studies undertaken subsequently revealed localdamage to neurones (nerve cells) in all three main nerves inthe right arm. The experts’ working assumption was that thishad been caused by ischaemia (an inadequate supply of blood)rather than by direct crushing of the nerve tissue.

However, the experts said that the injuries suffered by theClaimant were without precedent in their experience and hadnever been recorded in the medical literature.

The Claimant’s advisers were unable to point to any specific evidence of negligence for which the Defendants were responsible. Consequently, they argued res ipsa loquitur (‘the thingspeaks for itself’), i.e. there was an inference fromwhat happened that negligence must have occurred.

Judge Armitage referred to Cassidy v Ministry of Health [1951]2 KB 343, where the Claimant went to hospital for an operationon two stiff fingers. He came away with four stiff fingers anda useless hand. In such circumstances, the Court of Appeal heldthat a prima facie case against the hospital had been made outand that it was thus up to the Defendants to adduce evidenceto refute negligence.

In Ratcliffe v Torbay Health Authority [1998] Lloyd’s Law Reports Medical 162, the Court of Appeal laid out seven principles for res ipsa loquitur cases. The fifth of these was that if thefacts were such that the judge could infer negligence from them,the Defendant may be able to give a plausible explanation forwhat happened. That was not a remotely possible one, but onthe other hand, the Defendant did not have to prove that hisexplanation was more correct than any other. If the Claimantcould rely upon no other evidence of negligence, his case failed.The sixth principle was that if the Defendant was able to satisfythe judge on the balance of probabilities that he did exerciseproper care, the claim also failed. However, if the untowardoutcome was extremely rare, or was impossible to explain inthe light of the current state of medical knowledge, the judgemust exercise great care in evaluating the evidence before makingsuch a finding.

In the present case, the Claimant had indeed made out a primafacie case. The Defendants argued both ‘plausible explanation’and ‘no negligence’ in response.

Both sides called experts in anaesthetics: Professor Hull bythe Claimant and Dr Martin Smith by the Trust.

There was conflicting factual evidence as to whether the Claimant’sarm was black in colour immediately after the operation. JudgeArmitage held on balance that it was not, although it was considerablyswollen and oedematous when the cuff was removed.

Anaesthesia was induced by Dr Anders, a consultant and Fellowof the Royal College of Anaesthetists. It was continued andcompleted by Dr Jeremy Wood, an experienced Senior Registrarand now a consultant himself.

Dr Anders described how she initially applied a blood pressure cuff to the patient’s right arm, but this was too tight owing to the patient’s size, so she replaced it with a larger one. This was left on the arm during the operation. It was not inflatedinteroperatively. An arterial line was inserted into the patient’sleft arm, at which point the cuff on the right side was deflated.

Anaesthesia was induced and muscle relaxant applied, followedby insertion of a central venous pressure line in the left internaljugular vein.

The cuff on the right arm was not the standard type used on wards, but rather it encircled the arm only once and was held by Velcro. It was linked directly to a monitor/recorder. Professor Hull noted that traditional devices can exert much greater constrictivepressure than this type.

From 09:57 hours, when the sensor lines to the monitor in theoperating theatre were connected, until 21:08, when the operationended, the readings were variable but uninterrupted and reasonable.Until the patient’s right arm was draped for surgery, the operatingtheatre staff would have had visually unrestricted access toit and none reported anything untoward. Dr Anders performeda thorough check on the patient and the lines/leads before thefinal draping. Again, nothing unusual was observed.

Having heard evidence from Dr Anders, the judge accepted thatshe was a thorough and careful anaesthetist. He also acceptedthat any signs of constriction to the arm would have becomeflorid quite quickly and would have been difficult to miss.He was satisfied that there were no signs of constriction whenthe right arm was draped (after which it would not have beenvisible for 10 hours) and that the uninflated cuff was not theonly cause of injury.

Professor Ramsden, the surgeon, conceded that strapping a shoulderto the patient’s body was not routine. He had employed the techniqueonce or twice a year for 30 years, without mishap. Tilting ofthe operating table up to 15°, to facilitate access, wasthe standard practice.

Dr Wood, as previously noted, took over responsibility for anaesthesiafrom Dr Anders during the course of the operation. He did notrecord or recall any relevant complication.

However, when the operation eventually finished and the drapeswere removed, obvious blistering over Mrs Heaton’s right upperarm was observed. Dr Wood recollected that the cuff was notinflated at this point, but there was blistering underneathit.

No relevant faults or defects had been reported to the monitoringequipment or spotted during routine maintenance in November2000.

Held: there was nothing to distinguish the anaesthetic expertsin terms of their expertise. They both agreed that the injuryhad arisen from arm–cuff mismatch. However, nothing similarhad been reported in the medical literature. Many patients undergoanaesthesia for 10 hours or longer without suffering this typeor degree of injury. Both experts said that the anaesthesiahad been induced with exemplary care.

Dr Smith, called by the Trust, thought that the injury had beencaused by intraoperative swelling of the arm and subsequentpressure of the skin against the blood pressure cuff. ProfessorHull, for the Claimant, accepted this thesis in the event thatthe evidence of Drs Anders and Wood was to be accepted by thecourt.

Dr Smith’s theory begged the question: what caused the arm toswell? Professor Hull had conceded that all evidence led tothe conclusion that the cuff could not have compressed the armactively for any significant period. Dr Smith thought it possiblethat the combination of strapping and tilting of the operatingtable might have resulted in pressure on Mrs Heaton’s rightarm, impairment of venous drainage and subsequent venous engorgement,accentuated by the patient’s size (110 kg).

The evidence of the anaesthetic experts was that any effectsof compression by the cuff would become apparent quite quickly.As such effects were not observed soon after application ofthe cuff, the original fitting of the uninflated cuff was notthe cause.

Professor Hull had proposed that the position of blisteringon the arm was consistent with a poorly fitting or poorly appliedcuff. However, that theory could be rejected on the basis ofevidence that Professor Hull had accepted.

Dr Smith’s theory, however, was plausible. The combination ofa snugly fit but uninflated cuff, the thrust applied by tiltingthe table and the arm constrained by strapping might resultin the sort of injury suffered by Mrs Heaton.

While Dr Smith’s theory was no more than that, it passed the ‘more than remotely possible’ test as described in his fifth principle by Brooke L J in Ratcliffe v Torbay Health Authority (q.v.). That being so, it was sufficient to displacethe conclusion that it was more likely than not that there hadbeen negligence. Even Professor Hull had accepted that the theorywas possible, albeit improbable in his view. The claim wouldtherefore be dismissed on the basis that there was a plausibleexplanation for the injury in the absence of negligence.

Dr Anders had exercised a high degree of care. No error messagehad occurred during the operation and the case could not beexplained by mechanically undetected part inflation of the cuff.Neither Dr Anders nor Dr Wood had been negligent.

Jeremy Roussak (instructed by Irwin Mitchell) appeared for the Claimant. Fiona Neale (instructed by Hempsons) appeared for the Trust


Comment

Given the baffling nature of this injury, it was unsurprising that the Claimant’s lawyers argued res ipsa loquitur, for thatno doubt offered them their best chance of success. This isan angle not often adopted in clinical negligence litigation,but here it was perfectly properly employed. Effectively, itentails shifting the burden of proof to the Defendant. However,because the Trust’s expert witness was able to offer a plausibleexplanation for an outcome that was unreported in the academicliterature, the Defendants were able to parry the attack successfully.


John Mead

Unprecedented injuries – negligence by anaesthetists not demonstrated: Heaton v Central Manchester and Manchester Children’s University Hospitals NHS Trust (Manchester County Court, April 2007 – Judge Armitage QC)
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Unprecedented injuries – negligence by anaesthetists not demonstrated: Heaton v Central Manchester and Manchester Children’s University Hospitals NHS Trust (Manchester County Court, April 2007 – Judge Armitage QC)

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Unprecedented injuries – negligence by anaesthetists not demonstrated: Heaton v Central Manchester and Manchester Children’s University Hospitals NHS Trust (Manchester County Court, April 2007 – Judge Armitage QC)
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