The High Court has dismissed Mary McNicholas’s medical negligence claim against consultant gynaecologist Andrea Hermann over a femoral nerve injury suffered during a hysterectomy in October 2005.
Mr Justice Barr delivered judgment on 7 July 2015. He found that Hermann did not depart from the standard of care expected of a surgeon of comparable skill by not releasing the self-retaining retractor during the operation.
McNicholas alleged that Hermann’s pre-operative care was deficient because she had not advised her to lose weight. She also alleged that the retractor compressed the psoas muscle and femoral nerve, and that the pressure should have been released several times during the procedure. Hermann denied negligence.
The judge found that the pre-operative approach was reasonable. McNicholas had sought a second opinion while still experiencing prolonged bleeding and stress incontinence that seriously affected her quality of life. The court accepted that excessive weight increased surgical risks, but found that proceeding with the hysterectomy when it suited her later that year was within the standard of care.
The operation lasted two hours and 18 minutes. The surgeon’s note described it as “very difficult surgery”. The judgment records that the operation involved fibroids, extensive endometriosis, prior abdominal surgery and significant blood loss. Estimates varied: the surgeon recorded 1.5 litres, while other records and evidence put the loss higher.
The court accepted that the femoral nerve injury was most likely caused by pressure from the retractor. The plaintiff’s expert, Professor Bonnar, said the retractor should have been released periodically to relieve pressure. The defendant’s experts said releasing it would disrupt the operation, require the abdomen to be repacked and could expose McNicholas to further risk while bleeding continued. The judge concluded that the plaintiff had not proved that a surgeon of similar status and skill exercising ordinary care would have released it in those circumstances.
The court also addressed separate issues. It found, on the balance of probabilities, that Hermann had not removed an ovary during the operation. A paragraph concerning weight reduction was missing from the copy of a 2005 letter available in Hermann’s records, but the court could not determine how it went missing and did not find that it had been deliberately removed. The judge declined to draw general adverse inferences from the defendant’s decision not to call a nurse-manager as a witness. He also found no evidence that any pudendal nerve damage was caused by negligence.
The court dismissed the claim. The judgment does not record an award of damages.