Mr U, a 50-year-old dentist, had suffered from symptoms of cervical myelopathy – due to spinal canal stenosis and intervertebral disc protrusion – for five years. The diagnosis had been confirmed by magnetic resonance imaging (MRI).
He had chronic neck pain, numbness and weakness of the left arm and fingers, and a ‘sluggish’ left leg; these problems interfered with his ability to do his job.
His local orthopaedic surgeon sent him to a tertiary-referral centre in 1999 to see Dr R, a specialist in cervical spine surgery. Dr R agreed that Mr U’s symptoms, signs and radiological findings were sufficient indications to operate.
Mr U received detailed counselling before consenting to undergo decompression and fusion of the relevant cervical disc space, using an iliac crest autograft and metal plate.
The surgery took place without incident. Mr U received postoperative dexamethasone to minimise the chance of inflammatory pressure on the cord, given the pre-existing stenosis.
Postoperatively, Mr U complained of a drooping eyelid and global limb weakness. Dr R documented that Mr U’s hand movements were stronger compared to preoperatively.
His registrar noted some distal upper- and lower-limb weakness with hyperreflexia and an extensor plantar response on the left. Later that day, Mr U was seen by a neurophysiologist, who noted signs consistent with hemi-compression of the cord, one spinal level below the surgical site.
The symptoms and signs continued, so Mr U had an MRI scan on the third postoperative day. This revealed that the bone graft used was protruding into the spinal canal and compressing the thecal contents. The disc at the level below the surgery was also causing a central cord compression.
Dr R took Mr U back to theatre and revised the procedure, removing the initial bone graft and fusing the spine one level below the original site, fashioning new grafts at each level. Mr U did well postoperatively and was discharged three days later. Postoperative MRI scans showed no evidence of cord compression, and a successful fusion procedure.
Mr U last saw Dr R three months after the surgery. He had engaged enthusiastically in physiotherapy and was doing well, but still had difficulty with fine movements in his hands and some weakness of the left leg. He was able to do a limited amount of dentistry.
Mr U started a legal claim against Dr R, alleging that fashioning a bone graft that protruded into the spinal canal, in a patient with known spinal canal stenosis, represented poor surgical technique. It was held that an intraoperative radiograph should have been done to ensure that the graft was correctly positioned. Mr U’s legal team alleged that the three-day delay in imaging and revising the graft site had damaged Mr U’s cervical cord and left him with disabling locomotor and sensory dysfunction.
We obtained a range of expert views from spinal surgery, radiology and neurology, as did the claimant. Some were largely supportive of Dr R, others less so. The areas of dispute concerned:
- The soundness of some of the operative techniques used (particularly the construction and measurement of the graft and the use of intraoperative radiological imaging).
- The significance of the protruding graft to any damage done to Mr U’s cord.
- The contribution of the delay in imaging the operative site, and its subsequent revision, to the long-term symptoms suffered by Mr U.
In light of this, a joint report for the claimant and MPS was obtained from an eminent academic surgeon working in this field.
He thought Mr U’s cord had become permanently damaged, and that he was vulnerable to this, given the preoperative spinal canal stenosis and disc abnormalities.
There was evidence to support damage occurring both before and after the surgery. It was impossible to distinguish what contribution to Mr U’s symptoms these two sources of damage had caused. On balance of probabilities, however, the expert felt that the surgical damage had significantly affected Mr U and had caused his inability to be unable to carry out certain activities, ‘perhaps ten years earlier than would have been the case if the operation had been an uncomplicated success’.
On this basis we decided to admit that Dr R may have been liable for a degree of Mr U’s problems. Given the contentious evidence on the causal relationship between any breach of duty by Dr R and Mr U’s symptoms, we were able to negotiate a limited out-of-court settlement.
We paid Mr U a sum equivalent to £3,250 (US$6,100) in compensation, and costs in excess of £5,000 (US$9,350).
This case demonstrates some of the difficulty in assessing and defending medicolegal claims. We rely on expert witnesses to give opinions on the merits of a case and the issues are often not straightforward. We do our best not to ‘roll over’ when claimants allege damage that may not be the clinician’s fault, settling cases reasonably when it appears that a patient has been harmed by medical treatment.
It is essential to take early action to investigate and, if necessary, treat any new symptom complex which occurs after a surgical or invasive procedure. Even if investigations reveal that nothing significant has changed, it is better to have this knowledge than delay any investigation and find out at a later stage that you should have been more decisive.