The scene

A patient with a history of dislocations of his left shoulder was referred by his GP to a highly experienced consultant orthopaedic surgeon, an MDU member, following a diagnostic arthroscopy by another consultant. After the initial assessment and a CT arthrogram (with dye) of the joint, the member discussed the options available to the patient. These included not having surgery and risk further dislocations or to undergo a Latarjet procedure, advising the patient this would require an overnight stay.

The patient chose to have surgery but discharged himself against the member's advice the same day. Four days later, he required surgical exploration of his wound to evacuate a haematoma that had developed after the initial procedure. Some three months after the surgery he was diagnosed as having sustained a rupture of the left long head of biceps tendon.

The claim

The patient brought a complaint but was unhappy with the response, and eventually brought a claim against the MDU member more than two years after the surgery. The claim alleged that during the operation, the member had failed to inspect the operative field sufficiently or at all before closing the surgical wound. The patient alleged that at the time of closing, an arterial blood vessel was actively bleeding which could (and should) have been identified and dealt with by electrocautery or ligation.

Responding to the claim, the MDU obtained independent expert evidence which supported the member's clinical management and served a letter of response denying negligence. The response explained that achieving haemostasis before closing would have been an automatic action for an experienced surgeon.

The MDU's response set out that when the member closed the patient's surgical wound, haemostasis would have been achieved and no vessels were visibly, actively bleeding. Accordingly, the vessel that caused the haematoma was not actively bleeding when the surgery was closed but started to re-bleed sometime afterwards, either because of displacement of a previously formed blood clot or the displacement of a previously applied surgical ligature.

The patient's solicitors did not accept the denial of liability and served court proceedings three years after the surgery. This included an additional allegation that during the surgery the member inadvertently cut the long head of the patient's left biceps tendon, leading to a rupture of the left long head of biceps tendon several months later.

After a consultation between the member, the MDU expert and a barrister, the MDU continued to deny all allegations. As to the alleged cut to the biceps tendon during the operation, we contended that the member had been careful to identify its location before making any incision, and that dissection during the surgery was approximately 2cm away from the long head of the biceps tendon.

In any event, the tendon was behind a retractor for the majority of the surgery. In such circumstances the suggested 'inadvertent' cutting was extremely unlikely, and the delayed nature of the rupture of the biceps tendon three months after the surgery also indicated against an intra-operative cause.

The patient's solicitors continued to pursue the claim, leading to a joint meeting between the independent experts instructed by the MDU and those instructed by the patient's solicitors. Following the meeting the experts agreed on several points.

• An arterial vessel identified and tied off during the surgical exploration when the haematoma was evacuated was, on a balance of probabilities, the cause of the patient's wound haematoma.
• The arterial vessel was cut and started to bleed during the original surgery.
• A proper inspection of the operative field before closing the wound at the time of the original surgery would have revealed any active bleeding.
• A rupture of the long head of the biceps tendon was not a recognised complication of the surgery or of the standard deltopectoral surgical approach to the shoulder used in many shoulder surgeries.
• On an empirical basis, there was a chronological relationship between the surgery and the subsequent development of the ruptured biceps.

The outcome

Six years after the surgery the claim went to trial and the court was asked to determine if the member failed to achieve haemostasis at the end of the surgery and negligently cut the long head of the patient's biceps tendon.

After a three-day trial the judge dismissed the patient's claim in full and found that on the balance of probabilities the haematoma was a secondary one (as contended by the MDU) not caused by a lack of care. The judge also concluded that the member did not cause the biceps rupture during the surgery but that it was an unexplained, non-negligent complication.

Summary

It was surprising that this claim was pursued to trial. Other than the fact that a relatively rare complication occurred post-operatively, there was no evidence of any negligent acts or omissions. The member felt disillusioned with the legal system that allowed a patient to pursue an unmeritorious claim all the way to trial, particularly in the absence of any objective evidence that his clinical management had been negligent.

Following the judgment in this case, however, the member expressed his gratitude to the MDU and the instructed solicitor for their professionalism and compassion throughout the process. Facing a complaint or claim can be extremely distressing, and the personal support we're able to offer members can often be just as important as the professional support we provide.