Complications of spinal surgery – has Pomphrey changed anything?

The short answer is no but feel free to keep reading.

In Pomphrey v Secretary of State for Health the Claimant’s claim for damages in respect of the non-negligent complications of spinal surgery failed. His argument was that for a period of 10 months prior to surgery he had symptoms of cauda equina syndrome and should have had decompressive surgery earlier. Had he done so he would probably have avoided the dural tear which he sustained when his operation eventually took place. HHJ Cotter QC rejected the Claimant’s argument, preferring the evidence of Richard Stacey to Nick Todd. He found that the Claimant had been suffering from intermittent spinal claudication caused by spinal stenosis, not CES, and that there was no requirement for earlier surgery.

The case is interesting for two reasons.

The first is Judge Cotter’s obiter finding that the claim in respect of the dural tear would have failed on causation because this complication would probably have happened whenever the surgery had taken place. This has caused some puzzlement. In his excellent blog Nigel Poole QC poses the riddle: a patient is correctly advised that the chance of a life-changing complication of surgery is only 7%. How can a court have found that the chance of the complication occurring was greater than 50%?

Judge Cotter, an experienced clinical negligence judge, considered carefully why the tear occurred and in his view, based on the surgeon’s own explanation, it was likely to have happened whenever the surgery took place, and by implication whoever the surgeon was. I don’t think there is anything intrinsically flawed in this particular factual finding and it does not set any sort of precedent. Practitioners must continue to be alert, as they no doubt already are, to the importance of understanding why a particular complication happened.  If there is a reason then it may be open to the court, as in this case, to find that the same reason would have led to the same complication with the same surgery on a different date.

The second point of interest is the judge’s reliance on scope of duty, following the Court of Appeal’s decision in MXN v Khan. Judge Cotter found that if there had been a delay in surgery the risk of the complication would have been the same whenever and therefore fell outside the scope of any duty to operate expeditiously. This is correct, but not new. Crossman v St George’s remains an outlier.

Practitioners should remember to consider:

  • in a consent case was the complication suffered within the scope of the duty to warn?
  • in a delay case has the risk of the complication increased as a result of the negligent delay?

I have settled three big spinal injury cases in recent weeks.  All of them followed the pattern of Thefaut v Johnston and Hassell v. Hillingdon. They had the following key features and all of them are in my view unaffected by the decision in Pomphrey:

  • elective spinal surgery
  • defective consenting process
  • inadequate time and space to consider options
  • if properly advised claimant would have postponed surgery to consider options
  • serious non-negligent complications were suffered but were within the scope of the duty to warn.

Nothing has changed.