Can you make a clinical negligence claim in cases of delayed surgery?

17 Jun 2019

Is it possible to bring a claim for damages for clinical negligence if your surgery has been delayed and if, when it eventually occurs, you suffer a chance complication during that surgery which causes you to suffer serious injury?

This issue was raised in the first instance decision in Pomphrey – v – Secretary of State for Health and North Bristol NHS Trust [2019] 4 WLUK 483.

The facts of the case

Mr Pomphrey had a history of back pain and urinary problems, and in January 2011 (aged 63), developed worsening back pain and sciatica.

Mr Pomphrey was seen by the Extended Scope Physiotherapists at Bristol Community Health for treatment but was not referred on to a Consultant Neurosurgeon for an opinion regarding his symptoms until half way through 2011.

When Mr Pomphrey was eventually seen by a Consultant Neurosurgeon at North Bristol NHS Trust on 14 December 2011, it was decided that he required urgent spinal surgery.

However there was a further delay and Mr Pomphrey did not undergo spinal decompression surgery until 24 January 2012.

Unfortunately, during the surgery, Mr Pomphrey suffered a tear of the dura (a thin covering over his spina cord) and a leak of cerebrospinal fluid.

As a result of this complication, Mr Pomphrey needed further surgery, developed an infection and also allegedly developed arachnoiditis – a chronic pain condition caused by injury to the arachnoid layer of the spinal cord.

Mr Pomphrey was left permanently disabled – in pain, doubly incontinent, with a loss of sexual function and restricted mobility.

The clinical negligence claim

Mr Pomphrey brought a claim for damages against the Secretary of State for Health and North Bristol NHS Trust, claiming that he had suffered injury as a result of negligent treatment.

It was accepted by both parties that Mr Pomphrey’s spinal surgery on 24 January 2012 had not been performed negligently.

However, Mr Pomphrey and his lawyers brought his case on the basis that he had been suffering from the symptoms of cauda equine syndrome (caused by intermittent pressure on the cauda equine which are the bundle of nerve roots at the base of the spinal cord) for a period of 10 months before his spinal surgery took place. Mr Pomphrey alleged that there had been a failure to diagnose compression of the cauda equine nerves by his physiotherapists and that earlier referral to a neurosurgeon should have been made. Mr Pomphrey further alleged that when the Consultant Neurosurgeon did eventually review him, he should have operated sooner than he did.

Mr Pomphrey claimed that if he had been referred sooner and if the operation had taken place sooner, he would have avoided the dural tear in his surgery which had caused his injury and permanent disability and would have had a successful outcome from surgery.

In contrast, the Defendants alleged that Mr Pomphrey’s injury had not been caused by compression of the cauda equina nerve and instead had arisen as a result of spinal stenosis and that there was no requirement for earlier surgery.

The judge’s decision

His Honour Judge Cotter found that when Mr Pomphrey had seen the Consultant Neurosurgeon on 14 December 2011, surgery should have been performed within one calendar month. The Judge went on to find that there had been a 10 day negligent delay in Mr Pomphrey’s spinal surgery and that this represented a breach of duty by the Defendant.

However, Mr Pomphrey’s claim still failed.

The Judge preferred the Defendant’s expert medical evidence to that served on Mr Pomphrey’s behalf and found that Mr Pomphrey had failed to establish that he was suffering from cauda equine syndrome prior to the surgery. Instead, the Judge found that Mr Pomphrey’s symptoms had been caused by spinal stenosis (narrowing of the spinal cord) and that there had therefore been no requirement for earlier surgery. The Claimant’s claim was therefore dismissed.

In finding for the Defendant and obiter on the law, his Honour Judge Cotter found that Mr Pomphrey’s injury was an unfortunate but small, inherent and recognised risk of the spinal surgery he had undergone. The risk of Mr Pomphrey suffering a dural tear during the surgery was 7%. The Judge said that the tear had not occurred as a result of the surgeon’s fault and had not occurred because of the delay in Mr Pomphrey’s surgery.

It was accepted by both parties that Mr Pomphrey would always have undergone the same operation as was in fact performed. The Judge agreed with the Defendant that if the surgery had taken place 10 days sooner, Mr Pomphrey would still have had the operation performed by the same surgeon who would have encountered the same issues. The Judge decided that the delay in Mr Pomphrey’s surgery had not increased the risk of his injury occurring and that the tear was just as likely to have occurred if Mr Pomphrey’s operation had taken place 10 days sooner.

The Defendant therefore did not have to pay damages because Mr Pomphrey had suffered injury as a result of a risk inherent to the operation, that had been unaffected by the negligent delay in the operation.

If you or a member of your family has suffered complications as a result of undergoing spinal surgery, the team of clinical negligence solicitors at Trethowans LLP will be delighted to advise you about whether you may have grounds to bring a Clinical Negligence claim. Contact specialist clinical negligence lawyer, Laura Rowe, on 02380 820537.