Bleeding After Spinal Surgery: A Seriously Disabled Woman Recovers Damages

In a recent successful claim a woman recovered damages after spinal surgery left her seriously disabled (LESFORIS v TOLIAS [2019] EWCA Civ 487).

The Spinal Operation

Mrs Lesforis had developed back pain and sciatica in 2007. She had been diagnosed with spondylolisthesis. One of her discs had slipped and was compressing the spinal canal. She was referred to Kings College Hospital where she saw a spinal surgeon. He advised an operation to decompress (relieve the pressure on) her spinal cord. After a number of appointments she decided on 20 February 2013 to undergo the operation. Her surgeon warned her of the risks of that procedure.

Because of NHS delays she decided to have the procedure carried out by the same surgeon privately. She was admitted for the operation on 27 June 2013.  There was a small complication during surgery – a minor dural tear which was repaired – but otherwise the operation went smoothly.

She was taken to ITU and about 3 hours after surgery was given a course of Low Molecular Weight Heparin in the form of Clexane, medication to prevent her blood clotting. This ‘anti-thrombotic’ reduced the risk of deep vein thrombosis (DVT) but increased the risk of bleeding.

What Went Wrong?

When she tried to get up 2 days after surgery, she was unable to feel her legs or wiggle her toes and had difficulty weight-bearing.  She had a CT scan of her lower back.  The scan was thought to show a haematoma putting pressure on her spinal cord. In effect she had suffered a bleed at the site of surgery. She was treated with steroids to try and relieve inflammation. This made no difference and just before midnight she was taken back to surgery.  Unfortunately, the operation did not succeed and she was left with a permanent injury to the nerves of her lower back. She is seriously disabled with incomplete paraplegia.  Her bladder and bowel function are affected. Her mobility is restricted. She is largely dependent on a wheelchair.

The claim for damages

She brought a claim for damages against her surgeon. Her case was that her surgeon should not have given her this medication so early – 3 hours after surgery – and this had caused her bleed. Normal practice is to wait at least 12 hours.

The surgeon’s evidence was that it was his normal practice to give early anti-coagulation to all his patients after brain or spinal surgery. He thought Mrs Lesforis was at particular risk of DVT for various reasons.

A breach of duty?

A spinal surgeon is only in breach of duty where his or her management falls below the standard of a reasonable spinal surgeon. Where there are different schools of thought among responsible bodies surgeons about how to do things, the court will not treat a minority approach as negligent. The test is of what amounts to negligence is known as ‘the Bolam test’. This means that surgeons can disagree about the timing of anti-coagulation. The issue in Mrs Lesforis’ case was therefore was whether there was any responsible body of spinal surgeons who would give anti-coagulation as early as 3 hours after surgery.

The expert evidence

The court heard evidence from neurosurgeons on both sides. Mrs Lesforis’ expert said that giving anti-coagulation within six hours of surgery increases the risk of haematoma. There is a much lower risk if it is delayed until 12 to 24 hours post-operatively, which is the more normal practice.  In his view, doing so within six hours was a breach of duty.

The surgeon’s expert said that practice differs. Some neurosurgical and spinal units give anti-coagulation routinely 24 hours after surgery. His practice was to do this but other people did things differently.  He thought that the precise timing was down to the surgeon weighing the risks and benefits.  He thought that giving CP within three hours of surgery would fall within the reasonable range of practice within the UK although he did not actually know anyone who did so.

The decision

The Judge accepted the evidence of Mrs Lesforis’ expert. Giving Clexane within six hours of the surgery fell below a reasonable standard of care. It was a breach of duty.

The surgeon in fact appealed to the Court of Appeal. The argument was a technical one relating to the Judge’s reasoning. He argued that the Judge did not take into account Mrs Lesforis’ specific risk factors.  Those risk factors were (i) that she was overweight, (ii) that she was to remain flat 48 hours post-operatively and (iii) that the operation had lasted for more than 1½ hours.

In fact the Court of Appeal upheld the judge’s decision and therefore Mrs Lesforis succeeded in her claim.

Spinal Surgery and Claims for Damages

There are certain common areas in spinal surgery which give rise to claims for damages from time to time. They include:

• Bleeding from wrongly managed anti-coagulation or injury to blood vessels
• Injuries to the spinal cord or to nerves
• Failing to deal with pressure on the cauda equina (the bundle of nerve roots at the base of the spine)
• Failing to give correct advice and lack of consent to treatment.

Unfortunately damage can be very serious. Mrs Lesforis’ case was an example of someone left very seriously disabled after an avoidable error in her treatment.

Expert Spinal Injury Claim Solicitors

If you have questions or concerns about spinal surgery that you or a loved one received, then please contact us.