Collyer v Mid Essex Hospital Services NHS Trust [2019] EWHC 3577 (QB) (20 December 2019)

C underwent a laryngectomy on 27 February 2014 to treat his recurrent laryngeal cancer. [2]

C now has almost no movement in his tongue. This is as a result, it is agreed, of significant and permanent damage to both hypoglossal (12th cranial) nerves. [6]

…there are no reports of non-negligent bilateral, near total, permanent nerve palsy of the hypoglossal nerves following laryngectomy. It is not a reported, let alone, recognised complication of laryngectomy in the literature. [9]

Equally, there are no reports of this damage being caused negligently. Of course, it is accepted that it would be possible for a surgeon to cause such damage negligently. [10]

C relies on the fact of the total absence of reports of such damage occurring to argue that since it is not a potential non-negligent complication it must have been caused negligently and suggested initially that it gives rise to a “presumption of negligence”. [12]

C’s case that… the injury was caused by negligence: – (a) inappropriately manipulated or “partially transected” the nerves i.e. there was direct contact with the nerves; or (b) incorporated the nerves into the suture line. [13]

D denies negligence. “Partial transection” upon which the claimant must rely rather than “total transection” (because C has some movement in his tongue) would mean that D went “off the bone” when dissecting the suprahyoid muscles by a great distance. Further he must have done so twice. Yet further he must have manged to inflict the same amount of damage to each nerve. He must moreover have been unaware of it in particular not noticing the muscle “twitching” when the nerves were damaged, again not noticing two such “twitches”. Secondly, it is said that there is no evidence that D incorporated one let alone both hypoglossal nerves in the closing sutures and that such a suggestion is implausible and has never been heard of before. [14]

…it is suggested that there are plausible alternative explanations for the injury. D says that the probable cause is pressure from retraction, inevitable in the course of the operation, on already vulnerable hypoglossal nerves. The pre-existing vulnerability, it is argued, arises from the effects of the previous radiotherapy and/or existing diabetes. Alternatively, the damage may have been caused by external pressure on the nerves through oedema/haematoma or intubation during anaesthesia/table positioning. [15]

C… argued that human error is always more likely than an event that has never been reported before especially in an operation that has been performed for over 145 years. [166]

D contends that the fallacy in this argument is that simply because something has never been reported, or recognised as occurring, then it can only have been negligently caused. The outcome for C has not been reported… It is therefore difficult to make any reasonable inference from the fact that it appears to be the first time to have happened to anyone. Medicine is not a precise science and there must be room for wholly unexpected result notwithstanding appropriate surgical technique. [167]

There are effectively four possible mechanisms which it is said could have occurred during the surgery and which are put forward. [168]

C has failed to prove his case on the balance of probability. It is an unhappy situation for the court not to be able to identify the cause of an injury such as this… the mechanism of C’s injury remains unexplained. [176]

…the claim must be dismissed. [178]