Articles and Case Studies

A Pain in the Neck

01 Feb 2007

Dr Sara Bird

by Dr Sara Bird

On 19 September 2007, the District Court of Western Australia dismissed a claim involving alleged negligence arising out of damage to the spinal accessory nerve1.

Case history

On 30 September 1997 the 28 year old patient saw his GP complaining of severe left-sided chest pain. He also had a lump on the right side of his neck for which the GP had prescribed antibiotics two weeks earlier. The GP referred the patient to the Emergency Department for further investigation. The patient underwent an ECG, CXR and ultrasound of the neck. The ECG and CXR were normal and a provisional diagnosis of costochondritis was made. The right sided neck lump was noted on ultrasound to be a ‘large complex hypo-echoic septated thick walled mass’, measuring 3 cm x 1.9 cm x 9 cm. The ultrasound report further noted that there were ‘numerous associated enlarged lymph nodes in the cervical chain’. The report concluded that ‘given the clinical context, the mass most likely represents an abscess with associate extensive cervical adenopathy’.

A surgical consultation was sought in relation to the neck mass. The surgeon recommended drainage of the abscess and a cervical lymph node biopsy. The operation was performed later that day. The surgeon reviewed the patient the next day in hospital and again in his rooms on 2 October 1997. By that time the pathology results were available. The pathology revealed a ‘necrotising lymphadenitis’ and no evidence of malignancy on the lymph node biopsy.

Some time later, the patient complained of problems with his right shoulder and he was seen again by the surgeon on 30 October 1997. The surgeon noted that the patient had trouble abducting his right shoulder and he was concerned that damage to the accessory nerve may have occurred during the surgery. The patient was referred to a neurologist. An EMG revealed an isolated lesion of the accessory nerve. The patient underwent exploration of the nerve on 19 January 1998 at which time the accessory nerve was found to be fibrosed but in continuity. Despite this further surgery, the patient continued to suffer from problems with his right shoulder. The patient subsequently commenced legal proceedings against the surgeon.

Medico-legal issues

The patient’s (plaintiff’s) case was that the surgeon (defendant) had severed the accessory nerve during the procedure to remove the lump in his neck and that the defendant’s treatment of the plaintiff was negligent in that:

  • he failed to advise the plaintiff of alternative treatments which were available to the plaintiff other than surgery;
  • he failed to advise the plaintiff of the risks inherent in the operation undertaken by the defendant; and
  • he failed to warn the plaintiff of the risk of damage to an accessory nerve arising out of the operation and the consequences of such possible damage.

Interestingly, the plaintiff did not allege that the actual damage to the nerve during the surgery had been negligent.

The claim ultimately proceeded to trial on 10 September 2007 and evidence was heard over four days. It was common ground at the trial that the surgeon had given no advice as to any alternatives to the proposed operative treatment. The surgeon gave evidence that on the basis of the ultrasound result, there was a real possibility that the patient had a large abscess, which had not responded to antibiotics and was located close to the inner ear and brain. The surgeon was concerned that if the abscess was not treated, then it could extend into the surrounding areas causing serious consequences for the patient. Further, he concluded that, as the lump was septated, it could not be drained by needle and therefore open drainage was required. There was also the additional concern that the lump may be malignant, possibly a lymphoma. At the trial, expert opinion was provided by two ENT surgeons. Both of these surgeons agreed that, in the circumstances, the operative treatment recommended and performed by the surgeon was the only reasonable and viable treatment available. The patient alleged that he should have been advised about alternative treatments such as no further treatment, continued use of oral antibiotics, intravenous antibiotics +/- additional steroids and small incisional biopsy. These theoretical alternatives were rejected by the medical experts. 

The patient gave evidence that the surgeon had not advised him of any risks associated with the surgery. In his evidence, the surgeon stated that he had no independent recollection of his discussion with the patient pre-operatively. The judge noted ‘surprisingly, he (the surgeon) did not take any notes whatsoever of the advice he gave’. In accordance with the Consent Form and his usual practice, the surgeon stated that he would have told the patient of the general risks of bleeding, infection and numbness. He stated that he would have told the patient of the risk of damage to nerves and blood vessels and, in particular, to the nerve that goes to the arm and shoulder. He did not believe that he would have mentioned the actual name of the nerve. He stated that he would have told the patient that there was no real alternative other than to proceed with the operation. The ENT surgeon experts stated in their evidence that a warning ought to have been given concerning the risk of damage to the accessory nerve, including advice that damage to the accessory nerve may result in some problem with movement around the shoulder. 

Ultimately, on the balance of probabilities, the trial judge concluded that it was likely that the surgeon did give the patient a warning about the possibility of nerve damage. He found that the surgeon probably did not elaborate on how the nerve damage might affect the function of the shoulder but, given the imperative nature of the proposed operative treatment in this case, the trial judge was satisfied that the surgeon was not in breach of any duty of care. 

The trial judge also went on to consider the issue of causation; that is, whether the patient, if warned of the potential harm to his shoulder, would have refused to undergo the surgery. The trial judge did not accept the patient’s evidence that he would not have undergone the surgery if he had been warned about the risk of injury to the accessory nerve and how it might affect his shoulder. 


This case is a reminder that even in situations where there are no reasonable and viable treatments available other than the treatment performed, it remains necessary to warn a patient of material risks of the treatment being recommended. In this case, it was necessary for the surgeon to advise the patient of the risk of damage to the accessory nerve, even in the absence of any reasonable or viable alternative treatment. However, due to the particular circumstances of this case (particularly that there was only one reasonable and viable treatment) it was not considered necessary that the potential consequences of the risks be also highlighted to the patient.

The case also highlights the importance of good medical record keeping. The trial judge expressed surprise that the surgeon did not make any notes of the advice he gave to the patient and, similarly, that the Consent Form contained no mention of the advice given by the surgeon as to the risks involved in the operation. It would have assisted the defence of the claim if such notes had been made.

Risk management strategies

Injury to the spinal accessory nerve in the posterior cervical triangle results in paralysis of the trapezius muscle and shoulder dysfunction. As the nerve crosses the posterior cervical triangle, its superficial location makes it very susceptible to injury. Any surgery in the posterior cervical triangle, such as cervical lymph node biopsy, excision of benign masses and radical neck dissections for malignancy, can result in injury to the nerve. Cervical lymph node biopsy is the main cause of accessory nerve injury. It has been estimated that accessory nerve injury occurs in 3 to 8% of diagnostic lymph node biopsies in the posterior triangle of the neck.2

Latrogenic spinal accessory nerve injuries need to be diagnosed early and treated promptly to prevent a severe and progressive debility of the shoulder girdle. Unfortunately, referral for treatment is usually delayed, the average length of the delay being 14 months.3

The usual presenting complaint of a patient who has suffered an injury to the accessory nerve is an inability to raise the arm above horizontal and/or shoulder droop. Almost as common is a complaint of pain, usually a ‘dragging pain’ in the shoulder. On physical examination, there is some degree of weakness of the trapezius muscle. Atrophy of the trapezius muscle, shoulder sag and scapular winging may be present.3

Medical practitioners need to: be aware of the possibility of injury to the spinal accessory nerve when performing surgical procedures in the posterior triangle of the neck; and alert to the detection of possible injury to the nerve in the immediate post-operative period. 

  1. Monument v Baker [2007] WADC 164
  2. Chandawarkar RY, Cervino AL, Pennington GA. Management of Iatrogenic Injury to the Spinal Accessory Nerve. Plastic and Reconstructive Surgery.
    Volume 111(2), February 2003, p 611-617
  3. Donner T, Kline D. Extracranial Spinal Accessory Nerve Injury. Neurosurgery. Volume 32(6), June 1993, p907911 With thanks to Enore Panetta, Senior Associate, Clayton Utz for his assistance in the preparation of this case.
Consent, General Practice, Surgery


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