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Successful defence of brachial plexus injury claim

03 August 2022
We assist anaesthetist Dr M after he receives a claim for his management of a patient during a cholecystectomy operation. By Louise Morgan, Litigation Solicitor, Medical Protection.

Dr M, a consultant anaesthetist, contacted us for assistance in respect of a claim being brought against him for alleged clinical negligence relating to his management of a patient, Mrs D, during a cholecystectomy operation. Mrs D complained that under anaesthesia she had suffered from a brachial plexus injury, which had caused her to suffer a permanent injury to her dominant hand.

Dr M was served with a formal letter of claim. The case was investigated by the Medical Protection legal team and independent expert evidence was obtained. A letter of response was served on behalf of Dr M, denying the allegations in full.

Mrs D did not accept the denial of the allegations and decided to proceed with formal court proceedings. At this stage, the case was transferred to the Medical Protection specialist litigation team.

The case 

Mrs D had a history of symptomatic gallstones. She had consulted with a consultant colleague of Dr M’s and had decided to proceed with elective laparoscopic cholecystectomy. Dr M was the consultant anaesthetist responsible for the anaesthetic care of Mrs D during the procedure.

Mrs D was obese with a BMI of 38 but was otherwise considered sufficiently fit to undergo the operation. Dr M administered anaesthesia and then administered a thoracic paravertebral block. Mrs D was positioned for the purposes of the administration of the block and transfer into theatre by several theatre staff, all of whom were experienced with appropriate manual handling for a patient under anaesthesia.

The operation was uneventful but on waking Mrs D complained that she had altered feeling and tone or power to her right arm. Dr M attended Mrs D and considered that at this stage her complaints were likely related to the thoracic block and that the complaint of altered feeling would resolve with time. Dr M arranged to review Mrs D later the same day.

After this discussion, Mrs D was attended by nursing staff and it was recorded that she was able to squeeze lightly but she was complaining of breathlessness. An hour later Mrs D reported that the feeling was returning but was then not able to squeeze the nurse’s hand and her arm was noted to be slightly discoloured. A few hours later Mrs D reported improvement in feeling but that she was not able to now use her hand. By the evening her sensation and feeling were reported to nurses to be returning slowly. Mrs D was duly discharged as she was improving the following morning.

A day after her discharge Mrs D attended her GP complaining of continued arm weakness. The next day Mrs D attended the Emergency Department complaining of back pain and general breathlessness as well as a continued problem with her arm. Mrs D continued to complain of altered sensation and an inability to use her arm, such that neurology review was arranged. Mrs D’s reflexes were normal and neurophysiology studies did not reveal any evidence of significant injury to the brachial plexus or cervical nerve roots. MRI also did not reveal any abnormality of the spinal cord and no brachial plexus oedema or traction diverticulum was noted.

Mrs D continued to complain of paralysis and loss of use of her arm. Over time she reported new symptoms including that she had started to limp. Mrs D’s treating consultants thought that she may have had a minor cerebral infarct but that she had probable psychological overlay in relation to her symptoms. Mrs D’s limp resolved after a consultant neurologist told her that there was no known cause for the symptom.

The claim

Mrs D pursued a claim against Dr M, alleging that she had suffered a brachial plexus injury that had been caused during the operation. Mrs D alleged that the injury had been caused by Dr M either by using excessive traction or failing to exercise due care when moving Mrs D from the trolley to the operating table and vice versa, or by permitting Mrs D’s arm to assume an inappropriate position or by failing to support Mrs D’s arm during the surgery.

The Medical Protection litigation team conducted a thorough review of Mrs D’s medical records and noted that she had a long history of unexplained medical symptoms, which had started during childhood and which included orthopaedic injuries, deafness and post-obstetric injury.

Breach of duty was denied on behalf of Dr M. Mrs D had been handled by at least three theatre staff using appropriate procedures during transfer and there was no evidence that excessive traction had been applied by any member of theatre staff. Dr M’s evidence was that Mrs D’s arm had been appropriately positioned and properly supported throughout the operation.

There was no evidence from any treating clinician that Mrs D had in fact suffered any brachial plexus injury with MRI and neurophysiological testing being normal. It was denied that Mrs D had sustained a brachial plexus injury as alleged.


When court proceedings are commenced and a defence has been filed, the court sets down a timetable of steps that the parties have to take to prepare a case for a final trial. This timetable is set down despite the fact that it is still only a relatively small number of cases that reach a formal trial.

The steps to be taken include each party providing the other with any documents that they hold, even if they adversely affect that party’s own case or defence, exchange of witness statements, exchange of expert evidence and expert discussion and expert joint statement. The purpose of experts’ meetings is to try and narrow the issues before the court, by reaching agreement where possible. Experts within court proceedings have a duty to the court and as such they should not be partisan but should work to assist the court in understanding the issues that it will have to decide.

Dr M’s legal team maintained that there had been no breach of duty of care and that Mrs D had not suffered any injury as a result of any action on the part of Dr M. Mrs D pressed forward with the case and the timetable of steps to be taken was fully completed. The case was set to proceed to a trial when Mrs D’s legal team requested what is known as a roundtable meeting be held to discuss possible resolution of the claim. This was agreed before trial. We made it very clear to Mrs D’s legal team that the purpose of the roundtable meeting was only to see if the issues in dispute could be narrowed in advance of the trial, as settlement of the claim was not indicated on behalf of Dr M.

Dr M’s legal team attended the roundtable meeting and maintained their defence of Dr M, refusing an invitation to settle the claim. At the conclusion of the meeting Dr M’s team confirmed to Mrs D’s legal team that they were confident that Dr M would succeed at trial. Two weeks later and just over three weeks before the trial, Mrs D discontinued her claim against Dr M.


Dr M was a very caring and careful practitioner. In the immediate aftermath of the operation, when faced with Mrs D’s unusual complaints, he had made sure to visit her frequently during her stay in the hospital to check on her progress and had taken the step of speaking with her GP to request neurological review.

The presentation of the legal claim caused some anxiety to a careful and conscientious practitioner. Nevertheless, Dr M was fully engaged throughout the process and ultimately was successful in his defence of the claim. The case also shows how thoroughly we investigate claims, including looking into claimants’ previous history, which may be relevant to a full picture being obtained.

In the New Zealand context

Mrs D could have made a complaint to the Health and Disability Commissioner (HDC). The HDC would have gathered information by contacting the team caring for Mrs D, requesting all anaesthetic and surgical records as well as consent documentation and results of investigations. Once information had been gathered, an anaesthetist would likely be consulted for an expert opinion to comment on whether Dr M’s care was consistent with the appropriate level of care expected.

Mrs D could have also made a claim with the Accident Compensation Corporation (ACC). ACC would following similar procedures in terms of gathering information and requesting a comment from Dr M regarding Mrs D’s procedure (and a comment on how likely a brachial plexus injury was during a laparoscopic cholecystectomy). An expert opinion would also be sought where ACC would decide whether to grant compensation for Mrs D. If the expert determines that the care provided by Dr M was inappropriate or unsafe, ACC could also make a referral to the Medical Council of New Zealand regarding Dr M’s practice. It is therefore useful to review the report to ACC and to carefully explain any management rationales so that it is clear that due care was taken.

It was particularly useful that Dr M had reviewed Mrs D regularly and documented her symptoms following the operation and arranged appropriate neurology review when Mrs D’s symptoms persisted. This not only demonstrated appropriate care and follow-up for a patient reporting potential complications following a procedure, but also identified that a brachial plexus injury had not been found to be the cause of Mrs D’s symptoms. Documentation in this case of the handling procedures and how Mrs D’s arms were positioned intraoperatively also helped Dr M’s defence.