Injury to the Spinal Accessory Nerve during Lymph Node biopsy: Expert Witnesses and Evidence-Based Procedures

Introduction: Injury to the spinal accessory nerve during lymph node biopsy in the lateral cervical triangle is a dreaded complication. It is disproportionately frequently the basis formedico-legal debates even though an evidence base is lacking. The scientific clarification of meaningful and mandatory measures during the procedure is essential. Materials and Methods: A legal database query from 1970 to 2011 was carried out using related keywords. Judgements were examined for expert witnesses, and a literature search regarding expert witnesses was done. The arguments found were verified with respect to evidence. Results: From 1970 to 2011, 18 verdicts were found with 11 claims upheld and seven rejected. Expert witnesses regularly asked for clear preparation of the nerve as well as the requirement of specialist standards, and often used the prima facie argument to show surgeon errors. In contrast, analyses of the literature showed a significant risk of injury during nerve preparation. The need for specialist standards remains, however, with significantly lower demands upon the expertise of the surgeon as described by expert witnesses. Discussion: There was a lack of scientific evidence for special manoeuvers during surgical procedures in the lateral cervical triangle. This prompted experts to ask for scientifically unproved manoeuvers during the procedure. "Eminence-based" expert witnesses with a teaching aptitude still have considerable influence on judicial decisions but are an unnecessary burden regarding the provision of medical treatment.