Example of a Clinical Negligence: Spinal Accessory Nerve Damage Case
Case No: MA010224
IN THE MANCHESTER COUNTY COURT
B E T W E E N:
C
Claimant
and
MANCHESTER HEALTH AUTHORITY
SUED AS SOUTH MANCHESTER HEALTH AUTHORITY
Defendant
CASE REPORT – SETTLEMENT
JANUARY 2001
Background to the Clinical Negligence Claim
This case revolves around spinal accessory nerve damage. The Claimant had a long history of maxillo facial problems dating back to childhood. When aged 18 the Claimant was involved in a parachute accident suffering a severe injury to his lower jaw. He developed Freys Syndrome as a complication of the surgery resulting in a gustatory sweating problem.
The Claimant continued to experience pain from the lower jaw and in 1978 when aged 36 he was referred to Withington Hospital, Manchester for treatment of his continuing problems with the left jaw. It was thought by the treating Consultant that the fibrous ankylosis which was the cause of the problem had to be released and that the prosthesis should be used.
After considerable delay the Claimant was admitted to hospital for surgery and on the 28th April 1992 an articular prosthesis was fitted. Initially the operation was thought to have been successful however the Claimant continued to experience pain noticeably over the lower end of the prosthesis on the left side. He was noted to experience a "burning sensation" which was ascribed to hyperaesthesia.
Upon review it was decided by the treating Doctors that a muscle flap taken from the sternomastoid to cover the lower end of the prosthesis would be the best way to address the Claimant's pain.
On the 26th October 1993 the Claimant underwent surgery whereby the neck scar was excised and a sternomastoid flap was raised and rotated over the ramus of the mandible.
Post operatively the Claimant complained of severe pain in his left shoulder which was limiting his activities and interrupting his sleep. It was found that the spinal accessory nerve had been damaged presumably during the course of the operation on the 26th October 1993.
The Claimant's Allegations
The Claimant alleged that he had not been properly warned of the potential complications of the sternomastoid flap operation prior to the procedure. The fact that the Claimant had previously undergone surgery in his neck it was alleged that it would have been appropriate to specifically warn the Claimant of the risk of damaging the accessory nerve as the anatomy of the region had been disturbed by previous surgery. He should additionally have been informed that damage to the accessory nerve might result in difficulty in abducting the shoulder, there might be difficulty in lifting weights and also problems in internally rotating the shoulder. Furthermore the Claimant should have been warned that if damage were to occur then there was strong possibility of developing a painful frozen shoulder.
The Claimant further alleged that it was inappropriate to treat his condition by the transfer of a muscle flap from the sternomastoid. In particular it was argued that the thickness and bulk produced by introducing the flap would disappear as the flap fibroused and atrophied thus after a period of time any benefit from introducing the sternomastoid flap would be lost. Furthermore it was argued that the choice of procedure was inappropriate as pain complained of by the Claimant was neurogenic in origin and was thus not amenable to a mechanical solution.
The Claimant finally alleged that the Defendant was negligent in failing to properly identify, protect and preserve the spinal accessory nerve thus leading to its damage intra operatively. It was argued that had all reasonable steps been taken to identify protect and preserve the nerve then it would have remained intact post operatively.
The Claimant's Injuries
The Claimant at the time of his operation had been employed as a kitchen porter. The injuries sustained by the Claimant at operation meant that he was unable to resume his pre operative occupation. He had limited use of his shoulder and shoulder girdle pain. He experienced weakness of the left trapezius muscle resulting in a painful frozen shoulder with inability to fully abduct and internally retain the shoulder joint. Because of the weakness in the trapiezus muscle the shoulder was not fully supported and tended to drag causing shoulder pain.
The Claimant was subsequent able to obtain employment as a Security Officer in August 1998 thus minimising his continuing loss of earnings.
The Defendants Case
The Defendants contended that the treating Surgeon had specifically informed the Claimant of the risk of nerve damage. It was further denied that the operation had in any way been carried out negligently nor that the choice of operation was in any way inappropriate for the Claimant's condition.
Settlement of Clinical Negligence Claim
The Claimant instructed Mr E D Vaughan, Consultant Maxillo Facial Surgeon and the Defendant, Mr H M Alty, Consultant Maxillo Facial Surgeon. The two experts met to consider the case and were able to agree on the terms of the warning that ought to have been given to the Claimant pre operatively. It remained disputed between the parties whether or not such a warning had been given.
The experts remained divided on the issue over the choice of operation, Mr Vaughan contenting that the same was inappropriate whereas Mr Alty was of the view that the inter position of soft tissue between the metal prosthesis and the skin and elevation of the "tightness" of the skin would reduce the pain felt over the prosthesis.
The experts did agree that the most likely injury to the nerve was a blunt injury resulting in axonotmesis of some of the individual neurons within the main nerve trunk. They furthermore agreed that had all reasonable steps been taken to identify, protect and preserve the nerve on the balance of probability the nerve would have been intact post operatively. They agreed that the damage caused was inconsistent with the operation note.
Following the meeting of experts negotiations were entered into with the Claimant eventually accepting the sum of £135,000.00 in settlement of which it was estimated that approximately £25,000.00 represented General Damages for pain suffering and loss of amenity. No liability was admitted by the Defendant.
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