A 49-year-old self-employed business owner with a long history of back pain was referred to Dr A, a spinal surgeon. The patient had undergone three discectomy procedures over the course of the previous two years, which had not resolved his pain.
Dr A carried out a revision decompression at the L5/S1 level, posterior lumbar interbody fusion at L5/S1 and an instrumented fusion from L4 to S1. Following the surgery the patient continued to suffer with pain. Dr A diagnosed pseudoarthrosis at the level of L4/5 and carried out further surgery with revision of the fusion and insertion of a cage at the L4/5 level. Unfortunately, the patient developed a leak of spinal fluid, which led to a further two revision procedures by Dr A.
The patient brought a claim against Dr A and the hospital. He alleged that the first revision procedure was substandard and caused the spinal fluid leak, which was not properly repaired. He also alleged that he was discharged from hospital too soon after the second revision procedure, and that he was left with urinary catheter material in his bladder which required surgical removal a year later. The patient alleged that the third revision surgery was negligent and failed to resolve his ongoing symptoms. He said he had an ongoing lack of feeling in his right leg with paralysis from the knee down and was suffering from ongoing pain, a neuropathic bladder, and sexual dysfunction. The patient later claimed his symptoms were the result of a cauda equina syndrome (CES) at the time of the second revision surgery, which he alleged Dr A had failed to identify and treat.
Medical Protection obtained expert evidence from a neuroradiologist and a neurosurgeon who were both supportive of Dr A’s management.
The case went to trial. On the first day of the trial, the claimant settled their case involving the retained piece of catheter with the hospital.
Dr A’s defence team argued that the claimant did not have CES and that his ongoing urinary symptoms were a result of the retained piece of catheter and not as a result of nerve compression, given the results of urodynamic studies. MRI scans taken at the time did not show any haematoma which might put pressure upon the cauda equina nerves and surgical intervention was not required.
The judge made a finding in fact that the claimant had developed CES leading to pressure on the nerves and the subsequent sequelae. He accepted the claimant’s expert opinion that the MRI showed developing CES and that it was there before the second revision procedure. He also found that had intervention occurred earlier he would not have developed CES.
However, the judge did not find Dr A negligent for his interpretation of the scan. He accepted the defence submissions that Dr A had adopted a “gold standard approach” to his care of the claimant and that his actions could not be faulted or described as negligent despite the findings of fact.
The claim was successfully defended and judgment was made in favour of Dr A.
- An adverse outcome for the patient does not necessarily mean there was negligence on the part of the doctor.
- In defending a claim of clinical negligence you must be prepared to explain and justify your management decisions.
- The role of the expert is to provide the court with an independent opinion on the clinical issues in the claim. Expert evidence on the standard of care provided can be pivotal to the outcome of a case.
- It is rare for claims for negligence against doctors to progress as far as a trial – the vast majority are settled, successfully defended, or discontinued before the case reaches a courtroom.