Spinal Surgery, Negligent Delays and Recognised Complications: When Can A Claimant Recover Damages?

Paul Pomphrey -v- The Secretary of State for Health and North Bristol NHS Trust

26th April 2019

Paul Sankey considers a recent spinal surgery case which clarifies what sort of loss a patient can recover. There was a negligent delay in carrying out surgery. The patient suffered a complication of which the risk was low. This was a freak incident and statistically was unlikely to have occurred had the operation been done earlier, as it should. He was not able to recover damages because this complication was found to be outside the scope of the surgeon’s duty to operate in a timely fashion.

Negligent Delays and the Chance Complication

What happens where surgery is negligently delayed and then gives rise to a chance complication which probably would not have happened but for the delay? The complication may just have been a freak event and not the surgeon’s fault. It is as if a roulette ball had landed on a particular number. On another occasion it probably would not have landed on that number. Is the patient entitled to claim damages?

The test of whether negligence has caused harm is normally the ‘but for’ test. You asked the question, “but for the negligence, would the patient have suffered this loss?”  If the answer is “no”, the patient can recover. But there are times when it is not enough to pass the ‘but for’ test.

Mr Crossman’s Nerve Injury

In the case of Crossman v St George’s NHS Trust [2016] EWHC 2878 a patient suffered just such a freak injury. The surgeon had planned conservative management without surgery and only to operate if it failed. The plan was not followed and the patient was negligently listed for surgery instead. The operation was a cervical foraminotomy. Conservative management would have failed and he would needed the same operation anyway, but at a later stage than it was done.

The operation carried about a 0.5% risk of nerve root injury. The risk would have been the same whenever the operation was done. There was nothing about this particular patient that made it more likely. Unfortunately during the operation the patient suffered exactly this injury through no fault of the surgeon. However the court found that had the operation been done at a later occasion the patient would probably not have suffered the injury. After all, the chance of it occurring would still only have been 0.5%. Applying the ‘but for’ test, the judge found that the claim succeeded.

Mr Pomphrey’s Dural Tear

A similar issue arose in the recent case of Pomphrey -v- The Secretary of Health and North Bristol NHS Trust (judgment given on 26th April 2019) but the judge came to a different view.

Mr Pomphrey was a 71 year old man with a history of back pain and urinary problems.  In January 2011 (at aged 63) he developed worsening back pain and sciatica.  On his case this was due to spinal stenosis (narrowing of the space around the spinal cord) and intermittent pressure on the cauda equina nerve roots (the cauda equina being the bundle of nerve roots at the base of the spinal cord).  He alleged that there was a negligent delay in carrying out surgery between March 2011 and 24th January 2012. In fact the judge found that the only delay was of 10 days. This was however due to negligence – the operation should have been done 10 days earlier.

Unfortunately, at surgery on 24th January 2012 he suffered a dural tear (the dura being a thin covering over the spinal cord). He needed revision surgery, developed infection and possibly arachnoiditis (described as a chronic pain condition caused by injury to the arachnoid layer of the spinal cord).  He was left disabled with pain, double incontinence and restricted mobility.

Like Mr Crossman’s injury this was an unfortunate but recognised risk of surgery – another random event. There was nothing that made it more likely to happen to Mr Pomphrey than to any other patient. It was not the surgeon’s fault. The risk of it happening was only 7%. On any given occasion it would be unlikely to happen. Had the operation been done 10 days earlier it probably would not have occurred.

There were a number of other issues in the claim but there is one which is particularly important. Mr Pomphrey claimed that, applying the “but for” test, he was entitled to recover damages for the dural tear.

The Defendants contested the claim.  The operation would have been done by the same surgeon encountering exactly the same issues.  The Claimant’s physiology would have been the same. The surgeon would have encountered the same difficulties and used the same technique.  The delay had not increased the risk of injury. The risk of a dural tear occurring would have been the same.  It was not an injury for which the Defendant should have to pay damages.

The Judge found that the risk of this injury occurring was very small. It was just as likely to have happened had the operation taken place earlier. The delay made no difference to the outcome.  Had there been no delay, the dural tear would still have occurred.

He went on to consider the legal principles to apply and in particular the “but for” test.

The Claimant had argued that applying the “but for” test in the normal way, the claim should succeed as it had in Crossman. The Defendant argued that the dural tear was a risk inherent in surgery and that the delay did not alter the likelihood of the risk occurring.  Although the Defendant had a duty to take reasonable care (a duty which it had breached), it was important to consider the scope of that duty. In other words, it was under a duty to protect the Claimant from some of consequences of delay but not others. For instance if delay caused harm because the Claimant’s condition had deteriorated, they would have to meet that loss. But the sort of loss he had suffered – the occurrence of a random event and a risk inherent in the operation did not fall within the scope of its duty.  The fact that the Claimant suffered a dural tear was coincidental.

Negligent Advice: the Haemophilia Gene

In the 2018 case of Khan -v- MNX, a claim failed because the injury was outside the scope of the Defendant’s duty. The Defendant gave the Claimant negligent advice as to whether she was a carrier of the haemophilia gene.  In fact she was a carrier and there was a risk of any child being born with haemophilia. She relied on that advice and went on to become pregnant and give birth to a child with both haemophilia and autism. Autism was entirely unrelated to haemophilia. Having a child with haemophilia meant that the costs of bringing up her child were greater than otherwise. There were additional costs to incur because her child also had autism. It was accepted that had she been correctly advised, she would have terminated the pregnancy and not had to incur any of those costs.

At trial, the judge applied the ‘but for’ test and found that the Defendant was liable not only for the loss arising from haemophilia but also that arising from autism. But for the negligent advice the Claimant would not have had to incur any of the additional costs.

The Court of Appeal disagreed with that approach.  Her doctor’s duty was limited in scope.  The duty was to give advice in relation to haemophilia and not autism.  The risk of her child being born with autism was not increased by the negligent advice.  Advice about autism was outside the scope of the doctor’s duty and therefore the doctor was not liable for the loss arising from autism.

The Decision in Pomphrey

The judge in Pomphrey took a similar view to that of the Court of Appeal in Khan v MNX.  He thought  it would be wrong to follow the decision in Crossman.  Whilst it was necessary to apply the “but for” test and ask what loss the Claimant would have suffered but for the negligence, there was a further consideration.  That was whether the injury was within the scope of the doctor’s duty.  The duty in this case was to avoid reasonable delay.  It was not to prevent a risk which was unaffected by that delay.  To decide otherwise “would drive a coach and horses through well-established causation principles”.

Therefore even if the case had been decided differently on the facts, the Claimant would not as a matter of law have been able to succeed.

Conclusion: When Can A Claimant Recover?

In many ways the ‘but for’ test is straightforward.  It requires the Claimant to be able to prove the injury would probably not have occurred but for the negligence.  Probably means a more than 50% chance. However there are cases where the Claimant satisfies the ‘but for’ test but the claim still fails.  One reason is that the injury falls outside the scope of the doctor’s duty.  In cases where surgery is delayed and a non-negligent complication arises, it will be important to consider the scope of the doctor’s duty. This issue is not straightforward and the cases of Crossman and Pomphrey reach different conclusions.

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