Abstract
The Claimant suffered massive injuries to his left arm in a road traffic accident. He came to Harrogate District Hospital for treatment five days later. Ultimately it transpired that he had suffered a 70% lesion of the ulnar nerve in his left elbow, caused by a piece of shattered glass. This injury was not identified while he was under the care of the Trust.
Mr Swain was a civilian worker in Iraq, and his accident occurred on 29 January 2004. He was operated on at an army casualty unit, where massive injuries to the left shoulder and arm were noted. He was flown back to the UK on 3 February and taken to Harrogate, which was his home town.
He was seen in A&E, where detailed examinations were undertaken by an SHO and a registrar. The following day he was seen by an orthopaedic consultant who noted that there was a ‘rather tenuous fixation of the ulna although the position is acceptable’. He was then seen by another orthopaedic consultant, Mr Collier, who had a special interest in upper limb injuries. Mr Collier noted extremely grave injuries to the left shoulder and concluded that there were likely to be brachial plexus problems and consequently problems with the ulnar nerve.
The Claimant was then seen by Mr Newman, a third orthopaedic surgeon, at his shoulder/elbow clinic on 9 February. Mr Newman concluded that nerve conduction studies by Dr da Costa in Leeds were needed. On 10 February, Mr Swain underwent a skin graft operation.
On 24 February, wires were removed, and on 5 March the Claimant was seen by Dr da Costa at St James' University Hospital. This specialist concluded: ‘the ulnar sensories are absent, nerve action potentials could not be defined and conduction studies are clearly abnormal’. However, Dr da Costa concluded that the Claimant did not have significant ulnar nerve palsy, there being no evidence of clawing in the left hand.
Back in Harrogate, Mr Newman saw the Claimant again on 17 March and queried Dr da Costa's conclusions. Indeed, he wrote to that specialist and asked: ‘I wonder if there was in your opinion an ulnar nerve lesion here… I would appreciate your advice’. Dr da Costa replied on 24 March to the effect that the vast majority of the problems were at brachial plexus/medial cord level, but accepted that it was difficult to assess the distal pathology, and thought that it might be worthwhile exploring the ulnar nerve if that site was being investigated operatively in the future.
On 22 April, Mr Newman saw the Claimant again and concluded ‘nerve conduction studies are in keeping with brachial plexopathy with or without a contribution from the ulnar nerve around the elbow’. He concluded that the brachial plexopathy was the limiting factor regarding treatment, and advised exercise including swimming.
On 11 May, Mr Newman referred the Claimant to Mr Kay, a consultant plastic surgeon for an opinion on best management of the brachial plexus.
By then, Mr Swain had become very disgruntled at the treatment he had been receiving and consulted Mr Frame, a consultant plastic and reconstructive surgeon in Harley Street. Mr Frame concluded: ‘he has an ulnar nerve paresis which I think is showing evidence of recovery… At the moment he has very little in the way of ulnar nerve function to the hand but I think that we can be optimistic that there will be further recovery. I think that part of the scapula has impinged on the ulnar nerve.’
On 22 June, the Claimant saw Mr Manning at the Queen's Medical Centre in Nottingham, who noted that radiographs to the forearm showed at least three retained foreign bodies, and that the Claimant exhibited symptoms of quite marked ulnar nerve weakness and parasthesia. Another consultant performed an operation on 2 July in Nottingham to remove three fragments from the forearm. The ulnar nerve was found to be 70% divided, and there was a glass fragment within the neuroma. Mr Swain was given a nerve transplant from his left calf, followed by reconstructive surgery.
The Claimant's case underwent several shifts during the course of proceedings. The judge regarded this as ‘highly regrettable’. Ultimately, allegations concentrated on the actions of Mr Newman following receipt of Dr da Costa's letter in March 2004; at or following the consultation on 22 April 2004; and at or following that on 11 May.
In essence, the major allegation was that Mr Newman should have referred the Claimant to Mr Kay on receipt of Dr da Costa's letter of 24 March, or failing that after the consultation on 22 April. A subsidiary allegation was that the lesion should have been discovered on physical examination.
Mr Newman maintained that it was reasonable for him to adopt a ‘wait-and-see’ policy in late March and April. This approach was supported by the Trust's expert witness, Mr John Stanley. However, it was criticized by Professor Simon Frostick, the Claimant's expert.
Held: Mr Newman's approach was supportable and it was impossible to say that he fell below the proper standard of care by not making an earlier referral to Mr Kay. The evidence of Mr Stanley was to be accepted. Mr Stanley had noted that Dr da Costa was highly respected, and ‘not to accept what he said would be extraordinarily foolhardy’. Moreover, Mr Stanley had stated that it was unusual to seek clarification of a neurophysiology report.
In fact, Mr Newman did not (as many doctors might have done) accept Dr da Costa's opinion unquestioningly. He asked him to review the case. That was clear evidence that Mr Newman was taking considerable care. There was nothing inherently improbable in Dr da Costa's opinion. The simple point was that the Claimant was getting better at this point, and as Mr Stanley has opined, ‘any improvement’ is supportive of a conservative approach.
Turning to the minor allegation, namely failure to identify the injury by physical examination, it was clear from the evidence that Mr Newman had carried out a thorough physical examination of the Claimant during each consultation. A vigorous attack had been made on his integrity in cross-examination, but the judge regarded Mr Newman as an honest witness. Accordingly, the subsidiary allegation also failed.
Michael Mylonas (instructed by Irwin Mitchell) appeared for the Claimant. Charlotte Jones (instructed by Beachcroft LLP) appeared for the Trust.
Comment
The case faced by the Trust altered materially during the course of trial. It is clear that the judge was concerned by such an approach. Moreover, having seen Mr Newman in the witness box he was satisfied as to his integrity, notwithstanding the fact that he ‘gave evidence in what could, with a degree of understatement, be described as a robust manner’!