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Clinical negligence in peripheral nerve injury cases

Posted: 21/06/2022

Many surgical procedures carry a risk of injury to nerves. Nerve damage is therefore one of the most frequently documented complications of surgery on pre-operative consent forms. Where nerve injury is a known risk of the planned procedure, surgeons must take care to explain that risk properly to patients before operating. They must exercise due care and skill to avoid causing nerve damage , but if it does occur, they must be quick to recognise and manage the injury to achieve the best outcome for the patient.

Some nerves are such substantial structures that surgeons should avoid damaging them altogether. If they fail to do so, then that in itself may indicate negligence on the surgeon’s part. Other nerves, however, are susceptible to inadvertent injury, so collateral nerve damage during surgery is sometimes unavoidable. Damage to peripheral nerves during an operation is often a cause for complaint by patients. It can result in a profound loss of function and pain.

The British Orthopaedic Association (BOA) is one of the organisations that issues guidance to surgeons on how to manage the risk of peripheral nerve injury and what to do if that risk materialises. Focussing on musculoskeletal surgery, the BOA published at the end of last year a BOAST (BOA Standards for Trauma and Orthopaedics) on the management of peripheral nerve injury. These apply to all clinicians involved in providing musculoskeletal care, whether the nerve damage is caused by a traumatic event or is a complication of orthopaedic surgery.

The standards require that an examination to assess and document peripheral nerve functions should be carried out and recorded pre-operatively where nerve injury is a risk of the planned procedure, and that this should be repeated post-operatively. An examination should also be done at the first opportunity after a nerve injury has been recognised, after any injection or manipulation of a limb, or after applying a cast. If a nerve is seen to be damaged during surgery, or if nerve deficit is recognised post-operatively, then formal advice should be sought straightaway.

There needs to be a clear pathway for management of suspected peripheral nerve injuries that can be accessed at any time of the day or night.

Andrew Clayton leads a team of solicitors at Penningtons Manches Cooper who specialise in orthopaedic claims. He has advised clients on inadvertent nerve damage during orthopaedic surgery and comments: “It is imperative that orthopaedic surgeons are alert to the risk of nerve injury, especially during surgery, and are quick to identify and act when a peripheral nerve has been damaged. The outcome for the patient depends on timely intervention by an appropriate clinician as the BOA standards require. This is particularly the case currently, with long NHS waiting lists and high demand creating unprecedented pressure on resources.

“Nerve injuries require time-critical investigations and treatment to achieve optimum outcomes for patients. The current resource pressures give rise to a real risk that the window of opportunity to treat accidental or negligent surgical injury to nerves may be missed, with potentially life-changing consequences for patients.”

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