I note the Editorial and linked paper on the ‘defensibility’ of surgical injuries. The fact that 94% of vascular and biliary injury cases are settled out of court supports the contention that such injuries are difficult to defend. Presumably, the defendant solicitors were sufficiently impressed with the expert evidence adduced to make them disinclined to continue their defence. But could this merely reflect the resoluteness of expert advice, if all 61 ‘winning’ opinions came from the same expert, creating a self-fulfilling prophecy? We should know whether this was the case, before reaching a firm conclusion.
Skidmore's concluding assertion that ‘laparoscopic procedures…when they go wrong are…indefensible’ requires more careful qualification. Scurr's paper considers 83 non-vascular and non–biliary cases of which 56 (67%) were abandoned, and only 18 settled. These were therefore eminently defensible.
He also suggests that non-essential cosmetic surgery that causes harm is indefensible. This is quite wrong. Success in negligence requires proof of substandard care, together with a causative link between this and any harm that results. Neither the ‘essential’ character nor the ‘cosmetic’ nature of a procedure has any bearing whatsoever on whether it can be defended during litigation. It is misleading to suggest otherwise.