Clinical Negligence – Sympathy for an Injured Patient May Not Be Enough

When an operation ends badly, leaving a patient seriously disabled, any sympathetic person might think that a damages award will follow as night follows day. However, as a High Court ruling made plain, it is a judge's duty dispassionately to consider the evidence in deciding whether an injury was caused by clinical negligence.

The case concerned a man in his early 40s who underwent complex surgery after developing what was described as a giant prolapsed disc. His spinal cord sustained damage during the operation, rendering him partially paraplegic. He subsequently launched a compensation claim against the NHS trust that bore responsibility for his care.

Ruling on the matter, the Court acknowledged that he had suffered greatly and expressed its admiration for the way he had dealt with the enormous challenges posed by the life-changing consequences of the operation. He had conducted himself in court with forbearance, fortitude and dignity.

Dismissing his claim, however, the Court found that conservative management of his rare condition would not have been an appropriate option. Surgical decompression of the spinal cord was the only reasonable choice. He was warned that the operation, to which he consented, was not without risk.

The surgical approach taken by the consultant neurosurgeon concerned was logical and appropriate and in accordance with a responsible, reasonable and respectable body of expert opinion. The neurosurgeon was also not negligent in changing that approach in response to difficulties that arose during the operation.

The spinal cord had, during the procedure, been mobilised gently, with appropriate skill and care and in accordance with standard practice. The damage was probably caused by a sharp fragment of disc digging into the spinal cord or by the surgeon's non-negligent attempt to remove it. Whilst recognising that the outcome of the case would be deeply disappointing to the patient, the Court concluded that there was no breach of duty on the surgeon's part.