Justice O'Neill recently dismissed a plaintiff's claim for failing to establish negligence on the part of a prominent consultant orthopaedic surgeon. The judge ruled that "in spite of the best efforts of eminent experts on all sides of the case [the Plaintiff's case on causation] has eluded convincing explanation".
The case involved an operation carried out in 2005 on a 19-year-old to correct a curvature of the spine. During the surgery, the plaintiff was partially woken up to assess motor function, which confirmed there was no injury to the spinal cord. After the surgery, the patient was noted to have total paralysis and loss of sensation in the lower limbs. He was immediately re-operated on, to remove the metalwork in his spine, and quickly recovered motor and sensory function.
However, shortly after, his condition deteriorated and he was left with paraplegia. Remarkably, in 2007 he recovered his ability to walk, and at the time of the hearing was noted to have some "relatively minor sensory deficits", with completely normal motor function. The plaintiff alleged that the operating surgeon was negligent in proceeding with the surgery without specialised spinal cord monitoring. Further, the surgeon was alleged to be negligent in instructing that the plaintiff could be mobilised "as able" after the surgery, and that this had caused the paralysis.
It was accepted that a failure to use the specialised spinal cord monitoring "deviated from general and approved practice". However, an assessment of spinal cord function in the form of the "wake up test" was carried out, and for that reason it could not be said that surgeon was "engaging in a practice which no medical practitioner of like specialisation and skill would have done".
It was further alleged that the plaintiff's spine would have been unstable following the surgery and that he should not have been mobilised. The judge accepted that the surgeon performing the surgery was the best placed to comment on the spine's stability, and accepted his detailed evidence regarding the surgery. He accepted that there was nothing to suggest that the plaintiff's spine was unstable in this case.
Finally, the defendant's experts considered that paralysis was caused by a "reperfusion injury", when the blood supply to the cord was interrupted during the surgery. Despite both sides being supported by robust expert evidence, the judge declined to accept either, indicating that in his view, the plaintiff's paralysis and subsequent recovery had simply "not been explained".
The judge ruled that there was no evidence of negligence on the part of operating surgeon and therefore the case must be dismissed. Further, the plaintiff had failed to prove, "on the balance of probabilities", that his explanation of causation was correct.
Originally published in the International Law Office Healthcare newsletter, 16 July 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.