Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QB)

[2014] EWHC 1590 (QB)

Case No HQ12X03993

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/05/2014

Before

MR JUSTICE STEWART

Between

Malcolm AtkinsonClaimant

South Tees Hospitals NHS Foundation TrustDefendant

Mr R Grimshaw (instructed by Slater & Gordon LLP) for Claimant

Mr Pritesh Rathod (instructed by DAC Beachcroft LLP) for Defendant

Hearing Hearing dates: 12 - 14 May 2014

Judgment

Mr Justice Stewart :

Introduction

[1]Mr Atkinson, the Claimant (“C”) was born on 15 June 1943. He suffered from Dupuytren’s contracture involving the little and ring fingers of his left hand. He underwent three operations at the Defendant’s hospital. These were: 28 October 2008 – Fasciectomy 18 April 2009 – Left median nerve decompression (carpal tunnel) 24 November 2009 – Re release of left carpal tunnel. Resection of scar/ Dupuytren formation left ring finger.

[2]C’s claim is that there was negligence on behalf of the Defendant’s hospital in the first and second operations; and as a result he has suffered injury, loss and damage.

Overview of C’s Claims

[3]As to the first operation, C’s allegation involves the ulnar digital nerve (“UDN”). The liability experts Mr Shewring and Mr Milner, Mr Shewring examined on 18.1.12 and 26.3.14. Mr Milner examined on 14.11.13 and 28.4.14. There was a joint examination of C on 01.05.14. disagree as to whether the UDN was divided at the first operation. They agree that it was not necessarily negligent to divide it at the operation, but it would be negligent to fail to identify that it had been divided; if it had, it would also be negligent to fail to consider repairing such a nerve. If it had been divided, and a repair attempted, then a repair would probably have been successful such that a significant number of C’s continuing symptoms would not be present.

[4]As to the second operation the issue involve the palmar cutaneous nerve (“PCN”). Again the experts disagree as to whether the PCN was divided during this operation. If it was divided then the experts agree that this was negligent. Also that some of the symptoms experienced by C in the palm of his left hand would not be present.

The Issues for the Court

[5]Breach of duty turns purely on questions of fact, namely:(i) Was the UDN divided in the first operation?

(ii) Was the PCN divided in the second operation? The burden of proof is on C to prove on the balance of probabilities that each of these nerves was divided as alleged.

[6]If breach of duty is established then the parties have agreed the losses that flow from division of the UDN and/or PCN.

C’s Pre-operative Condition

[7]In about 1998 C sustained an injury to his left little finger. He was no longer able to move it and to some extent it became redundant. He said it did not bother him too much, apart from the fact that it would continually get caught on things. In 2008 he went to his GP because his left ring finger began to curl inwards. He had nodules all across the palm of his hand and his ring finger was quite severely bent in towards the palm of his hand. He said that this became quite restrictive so he decided to go to his GP who then referred him to Dr Erdinger.

[8]Dr Erdinger saw C on 6 August 2008. He confirmed the GP’s diagnosis of Dupuytren’s contracture of the left non dominant hand, palm, little finger and ring finger. The left little finger had a swan neck deformity as a result of the earlier injury. Dr Erdinger said that the decision to perform surgery on a Dupuytren’s contracture is never made lightly because it is progressive and incurable. Recurrences are likely. An operation is only indicated if the patient is experiencing problems with daily life. After discussion between Dr Erdinger and C, C indicated he would like to proceed and was placed on the waiting list for surgery, namely fasciectomy for the Dupuytren’s contracture. There was also the possibility of a resection after arthrodesis of the left little finger but it was decided not to carry this out. This is not an issue in the claim.

Lay Witness Evidence: Mr Atkinson

[9]C confirmed his statement of 24 June 2013. His oral evidence was that after the first operation his ring finger was abnormal. He could not feel anything for a while. After the bandages came off he tried not to touch things with the ring finger. If he did touch something or something touched it he could not remember if the finger was completely dead or not. He said he did not use his left hand to make a cup of tea and had never used his left hand from the day it was operated on. He made sure his little finger did not touch it. He had tried once to put his wedding ring back on, but could not put it past the tip of the finger. This was because of the sensation in the finger which would not let him do it; also swelling.

[10]C said that when Mr Milner first examined him he remembered Mr Milner asking to close his eyes and then Mr Milner prodded his finger. He said he told Mr Milner the truth. He did not know what he was doing. He told him he could feel something on the finger because of the sensation. When he saw Mr Milner the second time in April 2014 there was the same test. He said that if he had said to Mr Milner that he could feel two points on a test, then he accepted that is what he felt. As regards the filament test, Mr Milner used it on his hand. He told him he could feel some filaments.

[11]As regards the joint examination with Mr Shewring and Mr Milner, Mr Milner carried out the filament test again. On that day he thought that Mr Milner was aggressive. He said that in the two examinations in Newcastle previously Mr Milner had not been aggressive. In those examinations Mr Milner did not give him the intense feeling in the finger as he did at the joint examinations. He had been quite professional at those two earlier examinations. At the joint examination C said that he told Mr Milner that he, Mr Milner, was hurting his hand and he tried to pull it away on several occasions. Mr Milner was holding his finger somewhere where he was squeezing it and giving an electric shock. C did not remember saying he could not feel anything. He did not remember the filament or two point test on the palm at the joint examination. He said that both his finger and his palm cause problems. If the ulnar border of the ring finger is touched then he gets an intensive electric shock. Finally C denied that he tried to mislead the testing at the joint examination.

The First Operation: 28 October 2008 – The Surgeons’ Evidence in Outline

[12]The operation was carried out by Elizabeth Wharton, then a specialist registrar to Dr Erdinger. It was done under Dr Erdinger’s supervision. He said that he was with at the theatre table guiding her step by step through the operation and he had to have the highest level of alertness to ensure, firstly, that C received the best treatment and, secondly, that Miss Wharton received the best teaching. After the operation was finished Dr Erdinger said he carried out a PBA assessment of Miss Wharton’s skills. That document has been produced and shows that Miss Wharton met the satisfactory standard. Miss Wharton’s operation note states:

“Finding – cord in palm extending into proximal phalanx ring finger. No cords affecting little finger therefore not operated on. Likely that PIPJ flexion related to previous injury. Incisions made in palm as per diagram extended into ring finger. Careful dissection – visualising nerves. Cords excised. Haemostasis closure – 4/0 vinyl…”

Haemostasis closure – 4/0 vinyl…”

[13]Both Miss Wharton and Dr Erdinger confirmed in evidence that the UDN was not divided during surgery on 28 October 2008. Miss Wharton says that her operation notes stating that she had visualised the nerves meant that throughout the procedure the nerves were seen and protected from damage.

The Second Operation: 18 April 2009 – The Surgeon’s Evidence in Outline

[14]Dr Erdinger gave evidence as to this operation which he performed. It was a decompression of the median nerve of the left wrist/palm (left carpal tunnel decompression). Dr Erdinger said that there was no problem with the surgery. The median nerve was observed during the surgery. His operation note states:

“Incision palm Dissection to medial nerve with No15 blade, cat-paws visualisation of median nerve and its motor branch to thenar. Nerve appears to be okay (not red) Very firm retinaculum – completely split….”

Nerve appears to be okay (not red) Very firm retinaculum – completely split….”

Third Operation: 24 November 2009 – The Surgeon’s Evidence in Outline

[15]Dr Erdinger had recommended to C on 14 October 2009 a revision operation to include an exploration of the UDN at the same time. Dr Erdinger’s evidence was that during the procedure the UDN was found to be intact, albeit surrounded by scar tissue. He says he did not find the UDN to be divided. His operation note states:

“Re-release of left carpal tunnel… Then re-do fasciectomy digital nerves to ring finger. The ulnar one is heavily embedded in scar tissue (or recurrent Dupuytren’s!) Resection of scar/Dupuytren’s formation palm, basal middle phalanx ring finger. Complete release…”

The ulnar one is heavily embedded in scar tissue (or recurrent Dupuytren’s!) Complete release…”

Dr Erdinger

[16]Dr Erdinger has been a consultant plastic surgeon at the James Cook University Hospital since August 2003. Prior to that he was employed as a consultant plastic surgeon in Austria. He received his CCST (Certificate of Completion of Specialist Training) in plastic surgery in May 2000.

[17]Dr Erdinger confirmed his witness statement of 2 August 2013.

[18]In relation to the first operation Dr Erdinger said that this was a teaching operation. It can be quite complicated. A specialist registrar can do it. He would only supervise depending on the specialist registrar’s experience of doing the operation. They would have to have some experience of doing the operation unsupervised. His recollection was that Miss Wharton was advanced in training. In his witness statement he said that he was scrubbed in, sitting with Miss Wharton at the theatre table and guiding her step by step through the operation. He reiterated this in evidence. He said he was prompting her throughout how to do things. The PBA assessment which he had completed and which he had marked Miss Wharton as “S” (satisfactory standard for CST (no prompting or intervention required)) seems to be somewhat inconsistent with this. My finding on this point is that Dr Erdinger did not need to prompt or intervene, though he was following very closely what Miss Wharton was doing. I also find that he was assisting in this operation. He did not give this evidence. However Miss Wharton Also Mr Shewring said that you always need an assistant in this type of operation to hold back the skin. I accept this on the balance of probabilities. The operation note of 28 October 2008 was completed by Miss Wharton. There is a diagram which Dr Erdinger said showed lines of dissection of tissue only at the base of the finger which, he said, would not cut any nerves further up the finger. Dr Erdinger could not remember where he and Miss Wharton were sitting. He said they would sit at opposite sides of the operating table. He also accepted that for moments he may not have as good a view as Miss Wharton. However he said it was not possible that he missed any division of the UDN. A knife was used to dissect the tissue. This requires great skill. There is usually an incision in the palm and then the nodules in the palm are dissected further. Sometimes however the finger incision is done first. He said it is not necessarily the case that the tissue is entwined with the nerve. He said that if the Dupuytren’s tissue is sitting on the nerve then it is necessary to dissect that tissue. He had no recollection as to whether the Dupuytren’s tissue was entwined with the nerve or if Miss Wharton has dissected the Dupuytren’s tissue on both sides. He said that Dupuytren’s tissue is fibrous. Nerves are not fibrous. Both are white but look slightly different. Under pressure in cross-examination he (fairly) said he could not say with any certainty that the nerve was not divided at the first operation. He went on to say that it is important to ensure that the nerve is protected and to ensure at the end of the operation that the nerve is intact along its entire length. He said this was a key part of the operation. He would expect a record in the operation note that the nerve had been checked and was intact. When asked as to where this was in the operation note he initially pointed out “careful dissection – visualising nerve.” It was then pointed out that after this the operation note says “cords excised” and “haemostasis.” He accepted that the note did not specifically say that the nerve had been checked as being intact.

[19]As to the presentation by C of symptoms in the ring finger after the first operation Dr Erdinger accepted, after being taken through the records, that C has presented with reduced or altered sensation, parasthesiae or dysaethesiae of the entire length of the ring finger in the ulnar distribution. These notes/letters are: 9 December 2008 Dr McGoldrick (registrar), 19 February 2009 letter of Dr Erdinger; 6 November 2009 letter of Dr Erdinger; 22 January 2010 (letter) and clinic 13 January 2010 (associate specialist); letter 16 April 2010 (specialist registrar). They will be dealt with in more detail below.

[20]On 30 June 2010 Dr Erdinger had drawn a diagram which showed that the entire ulnar aspect of the ring finger had vastly altered sensation along its entire length. There are shaded lines in this distribution and Dr Erdinger has written “very sensate.” At the bottom of the ring finger is a large dot alongside which Dr Erdinger wrote “numb”. He denied that this was Tinel’s test. He said it was a numb point. Finally, shown on the diagram is a scar, with a shaded area at the bottom of the scar nearest the wrist. Dr Erdinger wrote alongside that “tender and pain on touch.” He said that this was not Tinel’s test. It was tender at the point of the scar. He said that the whole length of the scar was tender. He found pain on touch at the point where he had put the shaded area. On 26 January 2011 Dr Erdinger had seen C and recorded (amongst other things) “left ring finger’s ulnar aspect still very sensate from web space to tip.”

[21]In the light of the post operative presentation it was put to Dr Erdinger that the most likely reason for this was division of the UDN. He said it was a very possible reason, but said that the UDN was not divided. It would have been a memorable event. He said that various other reasons can cause the symptoms he found. Nevertheless one reason for doing the third operation was to check what was going on with the UDN. The consent form contained “exploration – removal neuroma.” He said that that was in the consent form because it was a possibility. He accepted that when doing the operation he would want to record carefully what he found. The third operation note is detailed. However Dr Erdinger accepted that it did not specifically say anywhere that the UDN was intact. It was put to him that either(i) he was not sure it was intact;

(ii) he did not check whether it was intact;

(iii) he could not tell whether it was intact because of scar tissue/Dupuytren’s tissue. Dr Erdinger said it was none of those. He just failed to write it down. The UDN was intact, otherwise he would have written it down. He was relying on his notes because he had no actual recollection. He denied that any of the three possibilities put to him by Mr Grimshaw were possibles. He was sure that the UDN was intact; it was not possible that he did not check and it was not possible that he could not tell because of scar tissue/Dupuytren’s tissue. He said he removed the Dupuytren’s tissue. He accepted that it was difficult to distinguish between scar tissue and Dupuytren’s tissue, but said that he could distinguish nerve tissue. The UDN was entwined with Dupuytren’s tissue. Dr Erdinger accepted that if the nerve had been divided then scar tissue can get in the division. However he said he could not have missed this because the scar tissue looked different from the nerve tissue. He had previously seen a nerve divided and scar tissue in the division.

[22]Dr Erdinger made it clear that from his position at the first operation it would have been very obvious if the UDN had been divided. He said that if this happens the nerve ends retract slightly and it is not something that can be missed. The UDN is a substantial part of the anatomy of the hand. He said that if the UDN is divided he would do an immediate repair and the patient would be told. At the third operation the ulnar nerve was heavily embedded in scar tissue. He said it would have been obvious if the UDN had been divided. However it was intact. He does routinely note that sort of thing in notes, but could not explain why it was not in his notes. However he said that if it had not been intact, he definitely would have noted it and it would have been repaired immediately.

[23]Finally as to the second operation, the intention was to release the median nerve entrapment. To do that a doctor had to release the transverse carpal ligament (TCL). The TCL is the “roof” of the carpal tunnel. An incision is done in the palm and down to the wrist. The PCN is a branch of the median nerve. He has not seen a PCN in a real life in carpal tunnel procedure. By this he meant the main branch of the PCN which runs parallel to the median nerve before dividing into smaller branches at the end. He said it is next to impossible to see the small branches of the PCN because they are too fine. The main branch of the PCN can be close to an incision for carpal tunnel but this is not usually the case. However he said he was always prepared to see the PCN when he did a carpal tunnel. He looks out to preserve any nerves. He said no surgeon would dissect the main branch of the PCN. The surgeon would be prepared to spot it and then preserve it.

[24]The second operation involved an incision of the wrist, retracting back the flap and then cutting down to the TCL. Then the distal part in the palm is released with a knife. Then a knife or scissors are used to reduce the TCL more proximally. Dr Erdinger accepted that it was important to get the knife/scissors into the correct plane so as not to divide the PCN. He agreed that the PCN is vulnerable if the surgeon gets in the wrong plane. He did not accept that he missed the PCN. He did not accept that he damaged the PCN, but said that ultimately it was a matter for the experts.

Dr Elizabeth Wharton

[25]Dr Wharton is a specialist registrar. She confirmed her witness statement of 19 July 2013. Although she did not remember C, she did remember the operation. C was on the operating table. He had his arm out on an arm table. She was sitting one side of C and Dr Erdinger the other side. Both were looking at the operation site. Dr Erdinger was guiding her. She said she had done about 20 such operations before, but it was her first with Dr Erdinger. She was in her second year of the specialist registrar training. Prior to that she had done 3½ years plastic surgery. She is almost at the end of her speciality training now.

[26]Miss Wharton said that the first operation required certain levels of skill, but if you have those levels of skill it is not very complicated. She carefully dissected the nerve from the tissue and then removed the Dupuytren’s tissue. She had to operate both on the radial and ulnar sides. She carried out the operation on both these sides from the same side of the operating table. Her recollection was that both she and Dr Erdinger would have more or less equal vision because both were looking from above. They would move around when operating or observing. She said, as I found, that Dr Erdinger was assisting her in the operation. She said that Dupuytren’s tissue can be a similar colour to a nerve. If they are similar then you go back to the nerve and so long as you follow the nerve in continuity you know the nerve is safe. That is what she did. The key is to protect the nerve.

[27]As to her operation note and the order of things, she said that when she wrote “careful dissection – visualising nerves” that was meant to describe throughout the whole procedure. Her operation note would be written five to ten minutes after the operation. She said there was no possibility that she visualised the nerves only prior to excising the cords. She would not necessarily repeat in her notes something that she was doing throughout the whole procedure. She said that if she had divided the nerve it would be obvious because she would be able to see both nerves and she checked that they were in tact. This is a standard part of the procedure and she did it.

[28]On a separate matter she said that she worked in the same department now and at the same hospital as Mr Milner. About four years ago she was his registrar. He was her supervisor.

Overview of the Evidence So Far

[29]Both Dr Erdinger and Dr Wharton were sensible, careful and honest witnesses. Of course, as with all witnesses, that does not necessarily mean that they are totally accurate. As Dr Erdinger and Mr Milner accepted, subsequent examination is normally a definitive way of determining whether nerves have been divided. Unfortunately in this case, the experts themselves are seriously divided on the issue. My task therefore is to analyse and make findings on their evidence, while taking full account of the evidence of Dr Erdinger and Miss Wharton. Before looking at the testing, I need to consider some findings on examination.

UDN: Findings on Examination

[30]On 9 December 2008 Mr McGoldrick, a registrar, saw C in clinic and recorded “some new symptoms in RF ulnar aspect/tip.” He then put a downward pointing arrow against the word “sensation”. This suggested reduced sensation.

[31]On 19 February 2009, Dr Erdinger wrote a letter having seen C in clinic. In it he said “since then (i.e. the October operation) Mr Atkinson complained of reduced sensation from thumb to ring finger. The ulnar side of the ring finger has reduced sensation but the ulnar digital nerve has been exposed with the fasciectomy, therefore reduced sensation is quite a normal finding and I would expect recovery from this.”

[32]On 6 November 2009 Dr Erdinger again reviewed C in his clinic. He wrote “regarding the hyper sensate ulnar aspect of the ring finger…I would add an exploration of the ulnar digital nerve at the same time. The chances are that the nerve has some scar entrapment or some more neuroma, therefore revision might give relief.”

[33]On 22 January 2010 an associate specialist to Dr Erdinger reviewed C in clinic. He said “his main concern is that he has residual numbness on the ulnar side of his left ring finger. …”

[34]On 16 April 2010 another specialist registrar to Dr Erdinger wrote “he still has a moderate amount of Dupuytren’s contracture affecting his ring finger. Mr Atkinson’s main complaint is that he continues to have parasthesiae affecting the ulnar digital nerve territory of his left ring finger.”

[35]On 30 June 2010 Dr Erdinger saw C. His clinical note contains the diagram to which I have referred in paragraph 20 of this judgment, and the findings therein contained.

[36]My analysis of the expert evidence in relation to these findings is as follows:(i) If there is any real sensation, albeit reduced, in the ulnar border of the ring finger then that means the UDN has not been divided. However, by real sensation, I mean sensation referable to the UDN. A divided nerve cannot have sensation, but other sensation may be felt from other nerves close to the UDN. The aim of very careful testing is to distinguish between real UDN sensation and other sensation.

(ii) Strictly, “reduced” sensation is not the same as absence of sensation. Dr Erdinger’s evidence was that C complained about changes of sensation and not loss of sensation. This is consistent with some of the above entries. However: (a) The entry of 22 January 2010 refers to “numbness”. Numbness usually means no sensation. (b) The court has to be careful, because doctors may not always carefully distinguish when making notes between reduced sensation and absence of sensation. (c) As will become apparent, even after detailed and careful testing from leading experts in the field (Mr Shewring and Mr Milner), they disagree as to whether there is reduced or absent sensation in the ulnar border of the ring finger, caused by a division of the UDN.

(iii) Therefore, I do not find that these hospital notes assist me greatly in determining whether C had an absence of sensation or reduced sensation in the UDN.

Expert UDN Testing: Sweating

[37]In an extract from a textbook produced to the court Lister, Graham. 1984 The Hand: Diagnosis and Indication., New York, Churchill Livingstone. 2nd Edition. it states at page 154:

“Sympathetic denervation following peripheral nerve injury results in loss of sweating. This loss is complete in the autonomous zone of the divided nerves… The presence of beads of sweat on innervated skin can be detected using the +20 dioptre lens of an ophthalmoscope… Smoothness is largely due to the absence of sweat, the lack of which reduces the friction between the skin and objects moved across it. While this can be detected by the examiner’s finger if his hands are cold, clearly any sweat on his hands will substitute for that of the patient and the distinction may not be clear. The tactile adhesion test…The friction on normal and denervated fingers is best tested with a smooth plastic object such as the barrel of a pen…in the denervated areas the plastic glides smoothly and compares with the definite resistance felt on areas of normal innervation.”

[38]A little later the textbook refers to an iodine starch sweat test as another possibility.

[39]In Mr Shewring’s first report he noted “there is an absence of sensibility over the palmar aspect of the entire ulnar border of the ring finger with absence of sweating of the skin.”

[40]In his March 2014 report he wrote:

“There is complete absence of sweating over the palmar aspect of the ulnar half of the ring finger. This was confirmed by palpation, the plastic pen test and direct visualisation under magnification. The radial half of the palmar aspect of the ring finger has normal sensibility with no dysaesthesia and normal sweating. ”

[41]Mr Shewring told me that if a nerve was injured or divided then the autonomic fibres are also damaged. They control sweating. Nerve injury tends to cause lack of this. He said it is a very sensitive test. Indeed, if sweating returns that is a good prognostic indicator that the nerve is going to recover.

[42]Mr Milner said he looked for sweating. He did the iodine and starch test and could not see sweating. He accepted that sweating and the 2 point discrimination test are both very strong indicators if reliable. He also accepted that if there is sweating on the radial side and not the ulnar side then that is a strong indication that the UDN has been divided. He said that he did not find sweating to be as reliable as the 2 point discrimination test which he described as the “gold standard”. He made the point, in accordance with the text book, that feeling the finger by the surgeon risks confusion because the examining surgeon may transfer his own sweat. He also thought that the plastic pen test was somewhat subjective on the part of the examiner. He pointed out that Mr Shewring had examined using a surgical loupe which has a magnification strength of x3.5 rather than the textbook suggesting it be carried out with a 20 dioptre ophthalmoscope. He also suggested a hypothesis (not put to Mr Shewring) that if the artery is stripped then that could cause absence of sweating. He did say that sensory dysaesthesia was not enough to cause loss of sweating.

[43]I can see some force in Mr Milner’s reservations about the sweating test in terms of palpation by the examiner, and the plastic biro. I also take account of his point about the magnification which Mr Shewring was using In final submissions, Mr Rathod submitted that Mr Shewring had not excluded the possibility of sweat being visible on the ulnar side using an ophthalmoscope, which was not visible under a loupe. This was not put to Mr Shewring. In any event, I find that on the balance of probabilities there was no sweat on the ulnar aspect and sweat visible on the radial aspect. . Nevertheless, it is not right for me to disregard the evidence of Mr Shewring that he positively saw beads of sweat on the radial aspect of C’s left ring finger, and an absence of any sweat on the ulnar aspect. This specific finding is in my judgment very strong evidence of the UDN having been divided.

UDN: A Finding of Mr Milner on 14 November 2013

[44]On page 4 of Mr Milner’s November 2013 report he wrote:

“The finger has a slightly dystrophic appearance, it is shiny and has less bulk than the opposite right ring finger, it has a slightly spindly appearance; this would be consistent with neurogenic changes.”

[45]In cross-examination he accepted that dysaesthesia does not cause shininess. He also accepted See extract from the textbook above that shininess is consistent with the digit not sweating. He said that dysaesthesia would not cause a dystrophic appearance nor a spindly appearance. He could not explain this finding. He said he did not observe it on other occasions. He went on to say that it was not really consistent with his 2 point discrimination positive test (see below). In re-examination he said he did not stand by this finding but he checked his notes and in his original notes he had written that the finger was shiny and spindly.

[46]I regard this finding as of importance. I accept that it is not mentioned elsewhere. Nevertheless, I cannot accept the possibility that Mr Milner did not find it but wrote it contemporaneously in his notes. The fact that neither he nor others have noted it does not detract substantially from this positive finding. The importance of this is that it supports Mr Shewring’s absence of sweating findings, and it is further strongly persuasive evidence (at least) that the UDN has been divided.

Expert UDN Testing: – 2 Point Discrimination (2 – PD)

[47]In Mr Milner’s first report he said that the 2 P – D was measured over the tip of each finger and thumb, and recorded at 4 – 5 millimetres for each digit on the right side and the same values on the left side. He said this was normal. He said this was important. It was measured at 4 millimetres at both the radial and ulnar aspects of the fingertip and the same value was recorded over the middle compartment on the radial and other side of the finger. Whilst undertaking this recording C did experience sensory dysaesthesia. Mr Milner said that the 2 – PD of 4 millimetres cannot occur if the digital nerve has been divided. He added that for the left ring finger distal and middle compartments, the radial side was measured at 4 millimetres. For the distal and middle compartments of the ulnar side of the ring finger 4 millimetres was also recorded; however this was against a background of severe sensory dysaesthesia.

[48]In his 28 April 2014 examination, Mr Milner said that static and dynamic 2 – PD was measured over the tip of each finger and thumb on the right side and was recorded at 4 – 5 millimetres for each digit. There was no significant difference between static and dynamic 2 – PD. 2 – PD was measured over the left hand and recorded at 4 – 5 millimetres for the thumb, index, middle and little finger. 2 – PD on the radial half of the ring finger was measured at 5 millimetres, and over the ulnar half of the ring finger it was also measured at 5 millimetres. On the left hand these readings applied to both static and dynamic 2 – PD. The ring finger again displayed intense dysaesthesia during the testing, but 2 – PD of the ring finger was undoubtedly present and recorded values in the normal range.

[49]2 – PD is an indication of sensory quality and indicates the ability to differentiate 2 points administered simultaneously as different stimuli. The wider apart the stimuli need to be before being detected, the worse the sensory quality.

[50]Mr Shewring did not carry out 2 – PD at his first examination. He says he should have done so in retrospect. In his March 2014 report, Mr Shewring said that over the ulnar border of the ring finger C had no ability to reliably detect the difference between 1 or 2 – PD. He said this extended from the base of the finger to the tip. Over the radial border of the ring finger there was the ability to detect 2 centimetres with 2 – PD.

[51]I shall deal later with the 2 – PD test at the joint examination on 01 May 2014.

[52]Mr Shewring’s comments on Mr Milner’s positive findings of 2 – PD were:(i) He accepted that if there was 2 – PD and Mr Milner did the test correctly then the UDN would not be divided.

(ii) He said that at the joint examination Mr Milner had put the 2 points transversely and not longitudinally in the line of the nerve. Doing this gives a false reading.

(iii) If the reading was not false then the only other explanation was that C was not a very reliable examinee, like many patients. He said that there are random false positives and false negatives and patients guess. He said he got the impression that C was guessing much of the time on testing.

[53]I do not accept that Mr Milner did the test wrongly. I accept his evidence that he did a static longitudinal 2 point test in the right place. That indicates whether the slow responding fibres are working. He also did the moving 2 point test longitudinally placed but slowly moving horizontally. That indicates if the fast responding fibres are working. He said that on both his examinations he did both types of 2 – PD. He mixed them up. The static test was positive both times. I also find in accordance with Mr Milner’s evidence that he did both the longitudinal and transfers test on the joint examination. Mr Shewring said that he did not think Mr Milner did the longitudinal test. I find that he was wrong on that.

[54]Turning to the joint examination, Mr Milner said that he also tested transversely so as to touch the radial nerve as well. He had first tested the radial nerve longitudinally and C gave a positive 2 – PD test. However when he got a negative 2 – PD test on that occasion on the ulnar side on longitudinal testing, he decided to test the radial nerve transversely. C said he then could not feel 1 point on the radial and 1 point on the ulnar nerve. From this Mr Milner believes that it is possible that C was deliberately confounding the testing. I do not accept that C was deliberately confounding the testing. My finding goes also for the filament testing on the joint examination, with which I will deal later in this judgment. Mr Milner said that when he examined C on his previous two occasions C was switched on and aware and answered appropriately. I find that C, in common with many patients, does not necessarily find it easy to follow instructions. This was the evidence of Mr Shewring. There was also a difference in view as to the accuracy of 2 – PD in the presence of sensory dysaesthesia. Mr Milner said that if the UDN is intact 2 P – D will be intact also. Nevertheless Mr Shewring’s evidence was that he would expect 2 P – D in a patient with intense dysaesthesia to be compromised.

[55]There are of course many strands of evidence and issues in this case. However, to the extent that I have to make up my mind between two tests, namely Mr Shewring’s finding of lack of sweating on visual magnified examination and Mr Milner’s 2 – PD test, on balance I prefer the accuracy of Mr Shewring’s finding. This is because I find that a patient in C’s particular circumstances may give false positives on the 2 – PD test; it is much more unlikely that Mr Shewring made an error (twice) in finding no sweating, particularly in the presence of sweating on the radial border of the finger. I am fortified in this finding by Mr Milner’s recording that the finger was shiny.

Expert UDN Testing - Monofilament

[56]The test is proper described as Semmes – Weinstein monofilament. It involves the use of nylon monofilaments of differing thickness producing a device which is able to apply pressure of different intensities to the skin. Mr Milner first did this test in April 2014. He found slightly reduced sensation on the ulnar side of the ring finger. He said that the values demonstrated by the test for the left ring finger indicated near normal innervation of the radial half and red, loss of protective sensation of the ulnar half. In his report at page 5 – 6 he had referred to the “North Coast Medical Inc.” In fact it should have been “West Coast Medical Inc”. Also he had recorded “normal or near normal innervation of the radial and ulnar halves respectively.” He corrected this in evidence. At the joint examination on 1 May 2014 it is recorded in relation to this test:

“This test was not reliable when performed today. Mr Atkinson was having difficulty obeying instructions and seemed unsure as to what was required of him. It appeared that he could not detect the pressure of the small fibres but there was some evidence of flinching and withdrawal of the hand when the red filament was used, even then Mr Atkinson did not indicate that he could feel it. It was Mr Milner’s view that the fact that Mr Atkinson flinched during this test was indicative of him having felt the monofilament and his denial that he could feel anything was deliberate and designed to defeat the test. This is likely to explain the difference in this test and the differences in the two point discrimination test between this examination and the findings of the examination of the 28 April 2014. We therefore did not think that this testing was reliable in Mr Atkinson”

We therefore did not think that this testing was reliable in Mr Atkinson”

[57]I have already found that C was not deliberately misleading or trying to confound the test. He was distressed at the time of the joint examination. Mr Shewring said that he may have been anticipating pain. He has a hyper sensitive ring finger because of the severe dysaesthesia. There was some uncertainty as to whether the flinching also may have been because Mr Milner was holding his finger. Mr Milner said that he was holding C’s hand. Whatever it was, I do not find that there was any deception in C not giving a positive filament test at the joint examination.

[58]Nevertheless, I have to deal with the positive filament testing at Mr Milner’s examination in April 2014. Mr Milner accepted that as a possibility that C was responding to the dysaesthesia feeling. Mr Milner was asked what question is put to an examinee. The question is “can you feel it?” Again I find that this is capable of producing a false positive and, in this case, I so find.

[59]In re-examination the Defendants produced a physiotherapy note dated 5 January 2010 in which somebody had recorded “sensation – he can localise the pink microfilament but not blue or green, signifying decreased protective sensation.” Mr Milner said that the pink filament is the NorthCoast equivalent of the West Coast purple. If I was convinced on balance of probabilities that this note was accurate and was not the result of a false positive, then again it would demonstrate some sensation in a non divided UDN. However, against the weight of the other evidence, in particular the absence of sweating and Mr Milner’s findings of neurogenic changes, I do not find this entry to be reliable.

Expert UDN Testing: Tinel’s

[60]A positive Tinel’s test provides an accurate locator of a neuroma following a divided nerve. The lack of a positive Tinel’s test does not indicate that the nerve is not divided.

[61]Mr Shewring said that Tinel’s test is to look for neuroma. If positive it indicates that a nerve has been divided and started to regenerate. In the early stages that will cause tingling if percussed over the area of the damaged nerve, until the patient says it is very painful. It can cause radiation of discomfort into an area. As time goes on there is less of a tingle and more of pain. Mr Shewring did not do the Tinel’s test in his January 2012 examination. He said he overlooked this. It was an oversight on his part.

[62]In his March 2014 report Mr Shewring said that there was a definite positive Tinel’s test beneath the scar just distal to the MCP joint flexion crease. This scar resulted in an electric shock feeling when percussed with discomfort radiating up into the ulnar border of the digit.

[63]In his April 2014 report Mr Milner said he was unable to demonstrate a discrete neuroma which would have resulted from division of the UDN. He said there was no neuroma to be found in C. He said that Tinel’s sign is impossible to elicit as a near percussion of the palm or ring finger is associated with intense discomfort and a withdrawal response which could be misinterpreted as a neuroma.

[64]Mr Shewring accepted that pain through the scar is not a positive Tinel’s test. He said that there was no reason why one part of the scar should be exquisitely more painful than another, unless there was an underlying cause. He was able to find a point of acute tenderness on the base of the ring finger where it met the hand on the ulnar side. He said the entire ulnar side of the ring finger is very painful, but the area at the base of the digit showed a positive Tinel’s test. Mr Milner said that the pain on tapping was not sufficiently localised. When he tapped there was pain throughout. It was more painful at the base of the finger but not sufficiently localised for a positive Tinel’s test.

[65]There was a dispute between the experts as to whether there was a positive Tinel’s test at the joint examination. Their joint report records:

“We agree that the scars are painful throughout their length. We agree that there is some increased pain at the base of the digit on the ulnar side and when this is percussed Mr Atkinson indicates that this causes a tingling sensation. Mr Shewring has the opinion that this equates to a positive Tinel’s test. Mr Milner holds the opinion that this finding is explained by a more intense area of dysaesthesia at this point and is too extensive to represent pain at the site of a neuroma.”

[66]Mr Milner said that Mr Shewring elicited sensory dysaesthesia not Tinel’s. He said that the finger was more tender/dysaesthetic in the area at the base of the finger, but there was no definite point. He said there was no tingling at the base of the finger that was different when percussed further up the ulnar border of the finger.

[67]This is a difficult issue; on balance I accept Mr Shewring’s evidence. The joint report clearly records “a tingling sensation” at the base of the digita ulnar side. Percussing such a point with the finger and producing the tingling sensation recorded – which tingling sensation is not mentioned elsewhere on the finger in the joint report – suggests to me on the balance of probabilities that there was a positive Tinel’s test.

[68]On Dr Erdinger’s diagram of 20 June 2010 there is a blob which would correspond to the place where Mr Shewring found a positive Tinel’s test. Alongside that Dr Erdinger has written “numb”. That would be inconsistent with a positive Tinel’s test. However, it is not clear whether this was a finding on examination by Dr Erdinger or a description by C. Dr Erdinger was asked about it and he said it was not Tinel’s test but a numb point. Notwithstanding this diagram, I find that Mr Shewring did properly identify a positive Tinel’s test at that point when he examined and upon the joint examination.

UDN: Discussion

[69]I find that on the balance of probabilities C has proven that the UDN was divided. The main reasons for this finding are:(i) The lack of sweating.

(ii) Mr Milner’s positive recording of neurogenic changes.

(iii) The positive Tinel’s test.

[70]Although there were clear difficulties in C’s case in relation to the expert evidence, namely Mr Milner’s evidence as to 2 – PD and monofilament testing, in my judgment these are explained in C’s favour on the balance of probabilities on the basis that the positive readings were false positives.

[71]Both Mr Milner and Mr Shewring are eminent experts, being respectively the President of the British Society for Surgery of the Hand and a past Secretary of that Society. Unfortunately Mr Milner had, in my judgment wrongly, not pointed out that he had a potential conflict of interest because Miss Wharton had been his registrar (though not at the material time). Further both experts had in different ways apparently not informed those instructing them without delay of any change in their opinions on any material matter – Protocol for the Instruction of Experts, paragraph 4.6. I do not believe this adversely affected the evidence of either of them in this case, but I trust that they will carefully take into account the Practice Direction and the Protocol in future. Though it is common ground that C is an unreliable historian, the finding as to the absence of sweating and the neurogenic changes are not matters based on C’s reliability as a historian.

[72]There were in effect two potential hypotheses for the symptomatology of which C complains. One was division of the UDN. The other was division of the small branches of the UDN at the base of the finger. Mr Shewring thought it was unlikely that there would be this level of dysaesthesia if only the small nerves at the base had been divided. He also said that there would be no damage further up the main branch or other small branches of the finger, and therefore there should be no compromise at the end branches which should be functioning normally. I do not rely upon this particular evidence. Mr Milner’s evidence was that very intense dysaesthesia along the entire length of the ulnar border could mask sensory perception in the smaller branches. Therefore the dysaesthesia along the ulnar border of the finger does not assist me in reaching a conclusion between the two hypotheses. I have reached that conclusion for the reasons I have already given.

[73]Before reaching the conclusion that on the balance of probabilities the UDN was divided, I have taken into account fully the honest and careful evidence of Dr Erdinger and Miss Wharton. It is unfortunately the case that the UDN is vulnerable to division in Dupuytren’s resection. It is the failure to spot it at the time of division which falls below the standard of the reasonably competent doctor. I am sure that Dr Erdinger and Dr Wharton genuinely believed that the nerve was intact throughout the operation. I accept that Dr Wharton believed that at the time she made her notes including the note “nerves visualised”. I have also taken into account that both doctors would be visualising the nerve. Finally, I have considered the third operation. While Dr Erdinger did not think it possible for him to have made an error in considering that the UDN was intact, nevertheless the subsequent findings which I have detailed above lead me to the conclusion that he did make such an error, notwithstanding his evidence that he would not mistake the UDN for Dupuytren’s tissue/scar tissue. PCN

[74]I can deal with the allegation in relation to the PCN more briefly. I say at the outset that I am not satisfied on the balance of probabilities that the PCN was divided at the second operation, which was carried out by Dr Erdinger.

[75]I remind myself that Dr Erdinger said he had never seen the main branch of the PCN in real life in a carpal tunnel operation. Mr Milner said he does a lot of carpal tunnel operations and the main branch of the PCN is a nerve that you never see. Mr Milner said that an incision to do a carpal tunnel syndrome (CTS) operation would be between two branches of the PCN. The scar photographed by Mr Shewring on page 9 of his medical report of 26 March 2014 is surprising if it is for a CTS operation because the last 5 millimetres proximally go beyond the operation field for CTS. However when re-exploring the CTS, the scar has to be extended proximally and distally. Therefore, looking at the scar alone, the probabilities are that the final 5 centimetres proximally and some length distally were as a result of the incision in the third operation. Mr Milner says that a surgeon would first cut in the palm when doing the CTS operation and then go towards the wrist. They would use fine scissors and they would have to go a long way proximally and radially to cut the PCN. This mirrors Dr Erdinger’s evidence, which was that the main branch of the PCN can be close to incision for CTS but not necessarily and, he added, not usually.

[76]Mr Shewring’s evidence is that where the proximal end of the scar is would coincide with the main branch of the PCN. There has to be some allowance of variation in different people. C relies for his evidence that the PCN was divided on a positive Tinel’s test and reduced sensibility in the palm.

[77]As to the Tinel’s test: Mr Shewring recorded a positive Tinel’s test over the proximal part of the scar in his examination in January 2012. He recorded this again in his March 2014 report by saying “in the proximal part of the scar, just distal to the distal wrist crease, there is a definite positive Tinel’s sign which is not present in the rest of the scar. Percussion of this creates a feeling of an electric shock with discomfort radiating onto the palmar skin”

[78]In his first examination Mr Milner said in relation to the palmar scar “there is an area of dysaesthesia in relation to the scar. Light touch or deep pressure is particularly uncomfortable here, this measures 4 to 5 millimetres from the wrist crease and is 22 millimetres in width.”

[79]In his March 2014 report Mr Milner said he carefully examined the course of the PCN. He was unable to demonstrate a discrete neuroma. He said “a Tinel’s sign is impossible to elicit as any percussion of the palm or ring finger is associated with intense discomfort and withdrawal response which could be misinterpreted as a neuroma.”

[80]Mr Shewring produced a diagram which he had prepared after the joint examination on 1 May 2014. This was obviously not to scale. Mr Milner had not seen it before he gave evidence. There is a point where he has marked at the proximal end of the palm near to the wrist “Tinel’s positive”. Mr Milner said that looking at that diagram it was where one would expect dysaesthesia from a divided branch of the PCN i.e. in the palm not near the wrist.

[81]Finally, C suggested that on Dr Erdinger’s diagram of 30 June 2010 a mark at the distal end of the scar, has alongside it the words “tender and pain on touch.” C suggests that this is corroborative of Mr Shewring’s positive Tinel test finding. Mr Milner did not agree. Neither did Dr Erdinger who denied that this was a Tinel’s positive.

[82]As to reduced sensibility over the palm of the hand:(i) Mr Shewring in his January 2012 report stated “there is altered sensibility over the palmar aspect of the palm in the region of the palmar cutaneous nerve.

(ii) In his November 2013 report Mr Milner stated “there is an area of dysaethesiae in relation to the scar. Light touch or depression is particularly uncomfortable here, this measures 4 – 5 millimetres from the wrist crease and is 22 millimetres in width. (It is shown on the accompanying diagram as a stippled area).”

(iii) In Mr Milner’s comments on Mr Shewring’s report (Milner 20 November 2013) he said “…the sensory dysaethesia affecting the proximal palm from which Mr Atkinson unfortunately suffers is due entirely to the division of the small branches of the palmar cutaneous nerve which occurs in any carpal tunnel release and whether the patient develops sensory dysaethesia is a constitutional factor in that patient rather than anything to do with the surgery other than the surgery obviously being a precipitating event.”

(iv) In the first joint statement Mr Shewring was prepared to accept Mr Milner’s opinion because Mr Milner could not find a positive Tinel’s test. On that basis Mr Shewring considered that there had been an improvement of symptoms and on balance the main branch of the PCN had not been divided.

(v) Mr Shewring then examined again in March 2014. Apart from the reduced sensibility over the palm of the hand, he stated that he found an intensely positive Tinel’s test over the proximal of the scar just distal to the distal wrist crease. For that reason he changed his opinion back again.

(vi) Mr Milner examined on 25 April 2014. He said there was no discrete neuroma and no positive Tinel’s test. He added that the sensory dysaethesiae affecting the majority of the palm did not coincide with the anatomical territory of the PCN. He said the non-anatomical distribution is well recognised in sensory dysaethesia.

(vii) At the joint examination on 1 May 2014 these positions were maintained. However I note that it is stated “both experts agree that the area of dysaethesiae is more extensive than one would expect from damage to the PCN and that the findings on examination are variable.” This in my judgment is a factor of considerable importance.

(viii) The diagram that Mr Shewring drew after the joint examination shows intense dysaethesia in an area around the distal end of the scar with a much larger area of slight and altered sensitivity. Mr Milner had not seen this diagram until he gave evidence and he said that the area of slightly altered sensitivity was even greater than shown on the diagram and extended towards the base of the fingers. Mr Shewring also found an absence of two point discrimination. However, given that I have found this to be unreliable in the Claimant’s favour in relation to the UDN, I do not feel confident in relying upon this result.

[83]Drawing all these elements together, I am not persuaded that C has proven on the balance of probabilities that there was a division of the main branch of the PCN, rather than a division of the smaller branches. Only the former is negligent. I do not find on the balance of probabilities that there was at any stage a positive Tinel’s test in relation to C’s wrist. If that is the case then, working from the first joint statement, Mr Shewring himself was not sufficiently confident of a diagnosis of division of the main branch of the PCN. Although I accept that there is variation in patients:(a) The area of distribution of the sensory disturbance is unusually large for the division of the main branch of the PCN.

(b) I do not accept as probable that Dr Erdinger made an incision on the second operation in the area of the main branch of the PCN.

[84]C’s claim succeeds in relation to the division of the UDN but fails in relation to the division of the PCN. I understand that the parties have agreed the appropriate level of damages in the light of this finding.