On 26th September 2005 a consultant surgeon employed by the defendant operated on the claimant to repair a vesicovaginal fistula. Following the operation the claimant suffered numbness, pain and loss of motor function in her left leg, due to an injury to her femoral nerve.
The claimant claimed damages against the defendant NHS trust, alleging that the surgeon had directly injured the femoral nerve during the process of dissecting her sigmoid colon. The judge upheld that claim and awarded damages of andpound;459,758.
The defendant appeals, asserting that the judge was not entitled on the basis of the evidence at trial to find that the surgeon had injured the femoral nerve. The judge ought to have found that this was merely one of two possible, but unlikely, explanations. Accordingly the claimant had not proved her case.
In my view, on a close analysis of the evidence (itself an unusual exercise for the Court of Appeal), the judge was entitled to make the findings of fact that he did. There is no dispute that if the surgeon directly injured the femoral nerve during dissection, that would be negligent.
If my Lords agree, this appeal will be dismissed.
Jackson, McCombe LJJ, Sie Colin Rimer
[2015] EWCA Civ 1244
Bailii
England and Wales
Personal Injury, Professional Negligence
Updated: 07 January 2022; Ref: scu.556458
