No liability for rare complication – Nicholas Collyer v. Mid Essex Hospital Services NHS Trust (High Court,20 December 2019 – Judge Coe QC)

Introduction

Mr. Collyer, who had a history of laryngeal cancer, underwent a laryngectomy (surgical removal of the larynx) in February 2014. He has been free of cancer since then, but now has almost no movement in his tongue due, the parties agreed, to significant damage to both hypoglossal (12th cranial) nerves. As a result he is unable to form words or to speak. He also finds it very difficult to swallow and has to communicate via gestures, signs and an iPad. These consequences have had significantly adverse effects on his physical and mental well-being, lifestyle and relationships. His mother who is 83 devotes her time to assisting and caring for him.

The parties’ positions

Experts for both sides interrogated the world literature and found no reports of non-negligent, near total, permanent nerve palsy of the hypoglossal nerves following laryngectomy. Equally, there were no reports of this complication having been caused negligently. The operating surgeon did not warn about the possibility because it was not a recognised complication. Research revealed one published warning leaflet, in Iowa, but none elsewhere in the world. The problem is not listed in the standard English text-book on such surgery as a complication of laryngectomy.

It was argued on behalf of the claimant that the fact the complication occurred must give rise to a presumption of negligence. The defendant contended that the probable cause was retraction, inevitable in the course of the operation, upon the already vulnerable hypoglossal nerves; or alternatively that the damage may have been caused by external pressure on the nerves through oedema/haematoma or intubation during anaesthesia or positioning of the operating table.

Factual witness evidence

Mr. Collyer maintained that as soon as he woke from the anaesthetic he was aware he could not move his tongue and wrote this on his patient board for medical staff to see. He could stick it out after the first 24 to 48 hours but not move it from side to side. He claimed he was told by staff this was due to the anaesthetic, and then that a nurse was going to fetch a doctor but failed to do so. His then partner and mother both supported his account, the latter stating she was absolutely sure about the absence of movement because she was worried about her son who had had cancer and she was not expecting him to be unable to move his tongue.

Mr. Stafford, the surgeon, specialised in head and neck cancer surgery. He had been a consultant since 1989 and had performed over a hundred laryngectomies at the time of Mr. Collyer’s surgery. He had never previously caused a hypoglossal nerve injury. He identified Mr. Collyer as being a difficult case because of multiple co-morbidities, a short neck, quite densely scarred and fixated soft tissues and loss of the normal tissue planes.

He recollected that the operation was complex but went well, there being dense fibrosis following radiotherapy. He described a gap of about a centimetre between bone and nerves, which meant that he had to stay “on the bone” when dissecting. He did not use diathermy but instead fine micro-dissection scissors. When the muscles are cut the hyoid bone is pulled down and away from the hypoglossal nerves. After dissection of the muscles there is no other stage that puts the nerves at risk. There was nothing during the procedure to suggest that there had been any direct injury to the nerve. Had the nerves been cut, touched or damaged there would have been an observable reaction of his tongue – this would have been obvious. It would have happened twice if each hypoglossal nerve had been damaged during the procedure.

In his post-operation letter to the claimant’s general practitioner, Mr. Stafford expressed the hope that the problem suffered by his patient was due to neuropraxia (non-surgical palsy) as opposed to cutting through the nerve during surgery. He stated that there remained some movement because Mr. Collyer could still protrude his tongue and swallow. However, Mr. Stafford had never seen any lateral movement post-surgery.

Medical records

Judge Coe observed: “most surprisingly, there is no mention at all in any of the nursing notes for the month that Mr. Collyer was an inpatient of his ability/inability to move his tongue.”

Expert evidence

The claimant’s expert witness, Mr. Gooder, had been a consultant otolaryngologist from 1982 to 2008 and had performed a total of 50 laryngectomies, the most recent being in 2007. His opinion was that on the balance of probabilities both the hypoglossal nerves were damaged in either one or two surgical manoeuvres, both of which were the result of sub-standard technique. He considered that the injury could not have occurred if Mr. Stafford had been exercising all reasonable care and skill. He did not agree that the nerves might have been vulnerable by reason of diabetes, vascular disease or radiotherapy, a theory advanced by the trust’s expert.

Mr. Gooder had never transected a hypoglossal nerve and therefore had never seen whether the tongue muscle jumps when that happens. He stated that there was no literature reference to this phenomenon anywhere. He accepted in his oral evidence that using dissection scissors rather than diathermy was the safer option and that this would reflect the practice of a careful surgeon. He acknowledged that a theory he had advanced, namely the possibility of the surgeon having enclosed the hypoglossal nerve in sutures, was his own and that he had never seen this reported or referred to.

The trust’s expert was Professor Homer. He had been a consultant otolaryngologist, head and neck surgeon since 2002 and had performed just under 200 laryngectomies. He acknowledged that hypoglossal nerve palsy was a recognised but uncommon complication of laryngectomy because the nerve is potentially liable to a degree of traction and possibly heat damage from diathermy (although Mr. Stafford used dissection scissors and not diathermy). Even so, this was extremely rare and he had never come across near total permanent bilateral hypoglossal nerve damage.

Professor Homer considered that some nerve trauma during this procedure was inevitable due to retraction. He thought it probable that that had occurred in this case, either due to tissue retraction or to intubation or changes in neck position against a background of poor tissue vitality due to diabetes, the effects of radiotherapy and vascular disease. He described what had happened as an extremely rare occurrence which he estimated as about one in a million. In his view, every plausible explanation was extremely unlikely. He thought that the only mechanism which had some credence was pressure damage to the nerve and tongue during retraction. He accepted that this was not listed as a complication in laryngectomy, but relied upon it as a general principle of surgery. He opined that for an experienced surgeon to depart from surgical technique on both sides of the hyoid bone, as alleged by the claimant's expert, seemed to him extraordinary.

The law

The claimant had the burden of proving that Mr. Stafford was negligent. Even if the court considered that there were a number of possible causes, some negligent and some non-negligent, the claimant must establish that the negligent cause he puts forward was more likely than not to have been the cause (The “Popi M” – [1985] 1 WLR 948). As the Court of Appeal observed in O’Connor v. Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244, “It is a not uncommon feature of litigation that several possible causes are suggested for the mishap that the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause, but the mere elimination of A, B and C is not of itself sufficient. The court must step back and, looking at all the evidence, consider whether on the balance of probabilities D is proved to be the cause.”

Findings

Judge Coe accepted there were no obvious complications or difficulties during the course of surgery. Those attending the operation would have seen the claimant’s tongue twitch or move if it had done so – such movement could not be missed.

There was conflicting evidence about the timing of events post surgery, but that given by Mr. Collyer and his witnesses was compelling. The total absence of any mention of tongue function in the nursing records was particularly unhelpful in resolving this issue.

On the balance of probabilities the mechanism of injury occurred during surgery. Four possibilities were put forward:

Mr. Gooder’s hypothesis that the surgeon might have included the hypoglossal nerves in the sutures when closing the pharynx. This was implausible and would be dismissed. As Mr. Gooder had acknowledged he had never seen or heard of this before.

In the circumstances, the claimant had failed to prove his case on the balance of probability. It was an unhappy situation for the court not to be able to identify the cause of the injury. The judge’s conclusion, however, was that the mechanism of Mr. Collyer’s injury remained unexplained.

William Edis QC (instructed by Gadsby Wicks) appeared for the claimant. Robert Cumming (instructed by Kennedys) appeared for the trust.

Comment

This was a most unusual case where the patient unfortunately developed a previously unreported complication of a procedure which has been performed since 1873. It is so rare that the fact the surgeon did not give any warning about the possibility during the consent process did not feature at trial as an allegation of negligence. The operating surgeon was highly experienced, and although even the best and most skilful practitioners can make mistakes occasionally, the main reason why the judge found against the claimant’s primary argument was that the surgeon would have had to make exactly the same mistake, on both sides, for this disability to have resulted, and all those attending the operation would have had to fail to observe the tongue twitching - twice. The burden of proof is always upon the claimant, and if he or she cannot prove a negligent cause on the balance of probabilities (51%) the claim will fail. It is not enough to demonstrate that negligent performance of surgery might have caused the injury.

Learning points