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Case of note: Collyer v. Mid Essex Hospital Services NHS Trust (High Court, 20/12/2019 – Judge Coe QC)

Date published:

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 has almost no movement in his tongue as a result of significant damage to both hypoglossal nerves. Consequently he is unable to form words or to speak and has to communicate via gestures, signs and an iPad. This has had an adverse effect on his physical and mental well-being, lifestyle and relationships.

Liability issues
The claimant’s lawyers argued that this complication must give rise to a presumption of negligence. His expert ENT surgeon postulated, alongside other theories, that both hypoglossal nerves had been damaged as a result of poor surgical technique. The trust’s expert evidence was to the effect that the probable cause was retraction of the nerves during the procedure which could not be avoided, or possibly intubation or changes in neck position against a background of diabetes.

The operating surgeon had been a consultant since 1989 and had performed over a hundred laryngectomies by the time of Mr Collyer’s operation. He had never previously caused injury to this nerve but had identified the patient as a difficult case owing to multiple co-morbidities, a short neck, quite densely scarred and fixated soft tissues plus loss of the normal tissue planes. As a consequence he proceeded with caution, using micro-dissection scissors rather than diathermy. There was nothing during the procedure to suggest that there had been any direct injury to the nerves – had they been cut or damaged, there would have been an observable reaction of the tongue.

Experts for both sides had interrogated the world literature but found no reports of near total, permanent nerve palsy of the hypoglossal nerves following laryngectomy. The surgeon did not warn of the possibility of such a consequence because it was not a recognised complication. One published warning leaflet, in Iowa, was discovered but nothing from elsewhere in the world.

Outcome
Judge Coe stated that the burden of proof lay with the claimant (as always in a negligence case). She accepted that there were no obvious complications during surgery and rejected all the theories as to what might have occurred. A suggestion of the claimant’s expert that both nerves were included in sutures when closing the pharynx was implausible. Equally, the defence argument that the nerves were irreparably damaged during retraction was highly unlikely. Damage caused during intubation for the anaesthesia was at least a reported potential consequence, but an outcome of bilateral, almost total permanent paralysis would have been unique in medical experience and could therefore only be considered a remote possibility – it was certainly not probable. For the operating surgeon to have cut both nerves during the course of dissection was improbable – he would have had to repeat exactly the same mistake on both sides, and there was no twitching of the tongue.

In the circumstances, the judge held that the claimant had failed to prove his case on the balance of probabilities. The mechanism of injury remained unexplained.

Comment
This was a most unfortunate outcome for the patient, but having subjected all the evidence to careful analysis the judge concluded that none of the explanations proffered in court was more likely than not to have happened. It is unusual for a court to reach no positive view on causation, but the complication suffered by Mr Collyer was unreported in world literature, despite this procedure having been undertaken since as long ago as 1873. That meant the surgeon’s lack of warning about the complication did not result in a finding of negligence – he quite understandably did not think such an outcome might occur. A claimant has to prove their case on the balance of probabilities, which means more than 50%. In the judge’s opinion, none of the theories advanced came close to reaching that level of proof, and therefore the claim failed.