Ratcliffe v Plymouth and Torbay HA [1998] EWCA Civ 206

Mr Ratcliffe suffered severe permanent neurological injury following a spinal anaesthetic given during ankle surgery. He alleged negligent misplacement of the needle, relying on res ipsa loquitur. The Court of Appeal upheld the trial judge’s finding of careful practice, rejecting liability and clarifying res ipsa in medical negligence.

Facts

Mr John Ratcliffe, a fit 48-year-old man apart from a right ankle injury, was admitted to the Princess Elizabeth Orthopaedic Hospital, Exeter, for a triple arthrodesis on 21 September 1989. Two days later he underwent surgery under a general anaesthetic, combined with a spinal anaesthetic to alleviate post-operative ankle pain.

The operation itself was successful, but afterwards Mr Ratcliffe was left with a serious neurological deficit on the right side from the waist down. He retained general use of the leg but effectively lost all sensation and experienced continuous severe pain. He also suffered numbness affecting his penis and ejaculatory difficulty. His condition has been essentially permanent.

The cause of the deficit was uncertain. In June 1995 an MRI scan showed a lesion at T11–T12 and a more indistinct lesion at about T9, while the defendants maintained that the spinal injection was administered at L3–L4. The plaintiff advanced various negligence allegations during the litigation, but by the appeal the case centred on the spinal anaesthetic, its level, and the application of res ipsa loquitur.

At trial before Mantell J, the principal neurological dispute was whether the symptoms were due to a single long lesion from about T8 to S3 (the “Nurick lesion”) or a patchy lesion at different levels. The identity of the doctor performing the spinal injection and the level of the injection were also in issue. The judge held that consultant anaesthetist Dr Boaden administered the injection at L3/L4 with appropriate care, rejected the single long lesion thesis, and concluded that the symptoms should be attributed to the spinal injection by some mechanism he could not positively identify, possibly involving a pre-existing asymptomatic central nervous system weakness triggered by the operation.

Issues

1. Causation and nature of the neurological lesion

The court had to determine whether the plaintiff’s neurological deficit was caused by a single elongated lesion (the Nurick lesion) consistent with direct needle trauma at a higher spinal level, or by a patchy lesion compatible with some other aetiology.

2. Standard of care in administering the spinal anaesthetic

The critical factual issue was whether the spinal needle had been inserted at the correct level (L3/L4) and into the dural sac, or whether it had been wrongly inserted at a higher level, potentially into the spinal cord itself.

3. Role of non-systemic vasculitis (NSV) or other underlying conditions

The defendants advanced a late-emerging theory that non-systemic vasculitis (NSV) or some similar asymptomatic vascular or granulomatous process in the central nervous system might have been triggered by the stress or “insult” of surgery and anaesthesia, leading to ischaemic damage.

4. Application of res ipsa loquitur in medical negligence

The central legal issue on appeal was whether the plaintiff’s condition raised an inference of negligence under the maxim res ipsa loquitur, and, if so, whether that inference had been rebutted by the defendants’ evidence. The Court of Appeal was invited to give guidance on the use of res ipsa loquitur in medical negligence cases.

Judgment

Findings of medical fact

Extensive expert evidence was called, including neuroradiologists, neurologists, anaesthetists and neurophysiologists. The joint report of neurologists Dr Nurick and Dr Illis recorded:

“He has no clinical evidence of a peripheral nerve lesion other than minimal sensory impairment in the right hand.

He has a patchy sensory loss or impairment on the right side with an upper level at T10 and with relative sparing of S3 on the right. The sensory disturbance is of all modalities (Touch, Pinprick, Temperature, Vibration sense, and Joint position sense).”

They set out two possible anatomical localisations:

“1. A thin elongated lesion from T8 to S3 involving the right postero-lateral grey matter of the spinal cord

or

2. A patchy bilateral lesion extending from T9 downwards involving the spinal cord.”

Dr Nurick preferred the single “Nurick lesion” because it explained certain reflex changes and MRI appearances; Dr Illis preferred a patchy bilateral lesion as it better accounted for sphincter and ejaculatory disturbance and the MRI distribution.

In their joint report they had initially discounted multiple sclerosis, chronic inflammatory process or vasculitis in the systemic sense, though they could not rule out other causes such as spinal cord ischaemia.

Subsequently, Dr Illis and Dr Schwartz advanced the NSV hypothesis in a late joint report headed “Non-Systemic Vasculitis”, explaining:

“Non-systemic vasculitis is a disorder primarily of peripheral nerves which is chronic and usually progressive. This disease has a much better prognosis than systemic vasculitis.

This disorder which was described by Dyck et al (1987) has been recently reviewed by Fathers and Fuller (1996). The disease is rare and usually diagnosed in patients with a peripheral nerve disorder, particularly mononeuritis multiplex …

Non-systemic vasculitis may become generalised or systemic after some years, so the presence of sub-clinical lesions in the central nervous system (as seen on the MRI) is not surprising.

The stress of general anaesthesia and surgery could produce physiological, metabolic and immunological changes which could trigger any underlying condition into an active phase.”

Various difficulties were explored with this theory: equivocal evidence of NSV in the brain, inconclusive peripheral neuropathy, lack of literature showing NSV in brain or spinal cord, and doubts about the trigger mechanism given the stress-reducing effect of an effective spinal block. Nonetheless, the trial judge accepted that there might be some asymptomatic condition triggered by surgery.

On the specific mechanism of the spinal injection, the judge found that Dr Boaden habitually identified the iliac crest at L5 and worked up to locate L3/L4; that with a thin patient this was not difficult; and that his practice included careful aspiration of clear cerebrospinal fluid (CSF) before, during and after injection. The contemporaneous note by Dr Clements recorded: “Spinal Anaesthetic. L3/4 space. Clear CSF”, which was later supplemented and initialled by Dr Boaden.

The judge accepted the evidence of both anaesthetists present and described Dr Boaden as meticulous and conscientious. He held, in relation to the alleged high-level cord injection:

“Dr Boaden gave his evidence quietly and carefully and impressed me as being a meticulous and conscientious man, as fits the description by Dr Clements. To my mind it is highly unlikely that he could have made the mistake attributed to him. It is even more unlikely when one takes into account that in all probability Dr Clements was present as an observer. But what is conclusive to my mind is the evidence of CSF which has been recorded by Dr Clements in the notes. It would have been theoretically possible for the point of the needle to be resting in the tiny space between the arachnoid mater and the pia mater when the first CSF was withdrawn. It is inconceivable to my mind that it could have been withdrawn from the spinal cord to precisely the same point when aspiration took place after the injection.”

He therefore found as a fact that the injection was given at L3/L4 and not at the higher levels alleged.

Patchy lesion and possible underlying condition

On the lesion’s nature and aetiology, the judge concluded:

“… The kind of patchy lesion for which Dr Illis contends is capable of explaining all the neurological signs. Its weakness lies in the proposed aetiology. As acknowledged in the joint report of Dr Nurick and Dr Illis, vasculitis is an unlikely explanation as one would expect the conditions to progress. Such has not been the case here. [NSV] was a late starter. Until early this year it was a condition unknown to Dr Illis or Dr Schwartz. It remains unknown to Dr Nurick. However there are references to it in the literature and I have to acknowledge the possibility of such a condition which may in the event be no different from the examples mentioned by Dr McQuay and others and referred to in the literature, notably in papers by Kane and Yuen, of a rare unexplained neurological complication following upon surgery. What is postulated is some kind of asymptomatic condition which the stress of the operation brings to life.”

Lord Justice Brooke held that the judge was entitled to reach this conclusion: highly experienced medical witnesses were dealing with an untoward event on the frontiers of medical understanding, and medical science is not all-knowing.

Res ipsa loquitur: principles restated

The Court of Appeal undertook a detailed review of res ipsa loquitur in negligence, tracing its origins from Byrne v Boadle and Scott v London and St Katherine Docks. Erle CJ’s classic formulation was quoted:

“There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Lord Pearson’s explanation in Henderson v Henry E Jenkins & Sons was adopted, emphasising that although the legal burden of proof never shifts, a set of facts can raise a prima facie inference of negligence, casting an evidential burden on the defendant. Megaw LJ’s analysis in Lloyde v West Midlands Gas Board was also cited, including his description of res ipsa loquitur as:

“no more than an exotic, although convenient, phrase to describe what is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances.”

Lord Justice Brooke reviewed key authorities in medical negligence, including Cassidy v Ministry of Health, Roe v Ministry of Health, Jacobs, Delaney, Bull, and others, as well as Lord Griffiths’ reasoning in Ng Chun Pui v Lee Chuen Tat where it was said:

“So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.”

Drawing these threads together, Brooke LJ articulated a series of propositions about res ipsa loquitur’s relevance to medical negligence, including:

(1) In its purest form the maxim applies where the plaintiff relies on the “res” (the thing itself) to raise the inference of negligence, which is supported by ordinary human experience, with no need for expert evidence.

(2) In principle, the maxim can be applied in that form in simple situations in the medical negligence field (surgeon cuts off right foot instead of left; swab left in operation site; patient wakes up in the course of surgical operation despite general anaesthetic).

(3) In practice, in contested medical negligence cases the evidence of the plaintiff, which establishes the “res”, is likely to be buttressed by expert evidence to the effect that the matter complained does not ordinarily occur in the absence of negligence.

(4) The position may then be reached at the close of the plaintiff’s case that the judge would be entitled to infer negligence on the defendant’s part unless the defendant adduces evidence which discharges this inference.

(5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant’s part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.

(6) Alternatively, the defendant’s evidence may satisfy the judge on the balance of probabilities that he did exercise proper care. If the untoward outcome is extremely rare, or is impossible to explain in the light of the current state of medical knowledge, the judge will be bound to exercise great care in evaluating the evidence before making such a finding, but if he does so, the prima facie inference of negligence is rebutted and the plaintiff’s claim will fail.

(7) It follows from all this that although in very simple situations the “res” may speak for itself at the end of the lay evidence adduced on behalf of the plaintiff, in practice the inference is then buttressed by expert evidence adduced on his behalf, and if the defendant were to call no evidence, the judge would be deciding the case on inferences he was entitled to draw from the whole of the evidence (including the expert evidence), and not on the application of the maxim in its purest form.

Application to the present case

At first instance Mantell J dealt directly with res ipsa loquitur, stating:

“The first question to be addressed and one which has occupied most of the hearing is whether it has been shown on a balance of probabilities that the anaesthetist, whoever it was, injected the spinal cord. I put it in that way because although I am far from stating that the maxim res ipsa loquitur can never have any application in a medical negligence case I doubt if it helps on the facts of the present. Certainly inferences are there to be drawn from the fact that the Plaintiff suffered unexpected neurological damage following the operation but in my judgment that falls short of establishing a prima facie case of negligence. … It is not I think necessary for me to refer to authority.”

He went on to find that the Nurick lesion had not been proved, that a patchy lesion was more consistent with the clinical picture, and that it was possible that some pre-existing asymptomatic condition triggered by the operation was responsible. Crucially, he made a positive factual finding that the anaesthetist had performed the spinal injection at L3/L4 with all due care.

Lord Justice Brooke held that once that factual finding was made, any inference of negligence based on res ipsa loquitur “falls away”. The plaintiff’s appeal therefore depended on undermining the judge’s appraisal of the anaesthetic evidence, especially the credibility of Dr Boaden and the reliability of the contemporaneous notes. The Court of Appeal declined to interfere: Mantell J was an experienced judge, had heard the witnesses over a long period, and was entitled to credit their evidence.

Brooke LJ observed that the plaintiff’s experts had not provided a logically coherent alternative explanation that satisfactorily accounted for all the evidence; the Nurick thesis left key matters unexplained. Given the accepted practice described by Dr Boaden, supported by Dr Clements’ note, the finding that the injection was correctly sited was “really inevitable”.

Concurring judgment of Lord Justice Hobhouse

Lord Justice Hobhouse delivered a detailed concurrence, elaborating on res ipsa loquitur and its limited practical role. He endorsed Erle CJ’s classic statement and stressed that the burden of proving negligence rests on the plaintiff throughout:

“The burden of proving the negligence of the defendant remains throughout upon the plaintiff. The burden is on the plaintiff at the start of the trial and absent an admission by the defendant is still upon the plaintiff at the conclusion of the trial.”

He emphasised that res ipsa loquitur is “no more than a convenient Latin phrase” signifying that facts may suffice to support an inference of negligence and a prima facie case. In medical negligence litigation, where discovery, expert reports and defined issues exist before trial, the case rarely proceeds in a factual vacuum. By trial, both sides usually have positive cases supported by expert evidence, and the judge decides on the totality of evidence rather than on any presumption.

Hobhouse LJ explained that the doctrine’s essential function is procedural: to allow a plaintiff initially lacking full knowledge to plead negligence and require the defendant to respond. Once the defendant has given an adequate response and evidence has been adduced on both sides, the judge’s task is simply to decide on the balance of probabilities whether negligence has been proved.

He suggested that “the expression res ipsa loquitur should be dropped from the litigator’s vocabulary and replaced by the phrase a prima facie case“, noting:

“Res ipsa loquitur is not a principle of law: it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. Where expert and factual evidence has been called on both sides at a trial its usefulness will normally have long since been exhausted.”

Reviewing the trial judge’s findings, Hobhouse LJ underscored that:

• The judge had ample evidence to support his conclusion that the lesion was patchy rather than elongated and that the injection site was correctly at L3/L4.
• The expert evidence (notably from Dr McQuay) showed a small but real residual risk of central nervous system deficit following a properly administered spinal block, so the occurrence of injury alone did not justify an inference of negligence.
• The defendants’ factual evidence as to the anaesthetic procedure, supported by contemporaneous records and unchallenged by any contrary factual account, demonstrated that all reasonable care was taken.

He concluded that there was no “residual” unexplained inference of negligence: the matter had been fully explored in evidence, and the judge had correctly decided the factual issues. To find negligence would have been contrary to the evidence the judge accepted.

Implications

This case provides authoritative guidance on the use of res ipsa loquitur in medical negligence. The Court of Appeal confirmed that:

• The maxim may apply in simple and obvious medical mishaps (wrong limb operated on, swab left in, patient waking during properly intended general anaesthesia), but most clinical negligence cases are too complex to rely solely on common experience without expert evidence.
• Where substantial factual and expert evidence is called on both sides, the judge’s task is to assess whether a prima facie inference of negligence survives in light of all the evidence, or has been displaced by a plausible non-negligent explanation or proof of reasonable care.
• Rare or unexplained adverse outcomes in medicine can occur even when proper care is taken; courts should not infer negligence merely because an untoward event follows a medical procedure, especially where medical science cannot yet explain the mechanism.
• In such cases, if the defendant’s evidence persuades the court that all proper care was exercised, and if alternative causes consistent with non-negligence are plausible, the plaintiff will fail despite the severity and rarity of the injury.

The decision thus underscores that clinical negligence remains grounded in proof of breach and causation on the balance of probabilities, not on outcome alone. It also reinforces the deference accorded to trial judges’ factual findings where they have assessed detailed expert and witness evidence, particularly regarding highly technical medical questions and credibility.

Verdict: Appeal dismissed; judgment for the defendants; the plaintiff’s claim in negligence failed and leave to appeal to the House of Lords was refused.

Source: Ratcliffe v Plymouth and Torbay HA [1998] EWCA Civ 206