One summer evening, a 36-year old woman noticed a lump in her neck. It had come up quite suddenly. Her GP referred her to a consultant ear, nose and throat surgeon, an MDU member, who initially diagnosed a Thy 3 follicular lesion, although postoperative histopathology revealed a multi-nodular goitre. He arranged for an ultrasound and a fine needle aspiration to be performed.
The results were inconclusive, and the surgeon had not established whether the lump was malignant or benign. The only sure way of telling was to operate. He explained the surgical procedure, warning her of the risk of RLN palsy, and after a few weeks’ reflection, she decided to go ahead.
Before surgery, the consultant again explained the procedure and warned of the risks. On the consent form, he wrote ‘scar, bleeding, recurrent laryngeal nerve palsy’ as ‘potential serious risks’.
The patient underwent a right thyroid lobectomy. During the operation she suffered an injury to her right recurrent laryngeal nerve (RLN).
She later brought a claim against the consultant alleging that he had damaged the RLN during surgery, resulting in permanent right vocal cord paresis.
The consultant stated that throughout the operation he had tried to find and isolate the RLN lower in the neck, but could not find it there. He therefore divided the middle thyroid vein and superior pole vessels in order to fold the gland medially and to look for the RLN in the tracheo-oesphageal groove.
As he saw no sign of the RLN he followed what he thought was safe practice, to isolate the inferior thyroid artery away from the gland and divide it there before continuing his dissection, by which time the last point of attachment of the gland was the ligament of Berry. He divided the ligament of Berry and took the lobe out, then immediately ended the operation and closed up.
He considered that to carry out any further investigation would only increase the risk of damaging the RLN.
He later apologised to the patient, explaining honestly and openly what happened, but did not admit liability.
Expert witnesses for each party disagreed on whether failure to find the RLN constituted breach of duty of care.
The claimant’s expert was critical that the consultant had cut the inferior thyroid vein before identifying the nerve.
The consultant’s expert agreed that every surgeon must look for the RLN but where it has been searched for but not found, it is permissible for the operation to continue. He said there are many different ways of doing the operation. He considered it was permissible to have cut the inferior thyroid vein. He also agreed that as the operation progressed the lobe became mobilised and it was appropriate to complete the procedure.
He said there were two explanations for the damage; it was either due to anatomical variation or technical error by the surgeon and he had found no evidence of the latter.
The court preferred this evidence, which they found to be the more persuasive of the two experts opinions, and the claim failed.
This page was correct at publication on 29/11/2012. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.