Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB)

4th December 2020
Key Issues
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In a case, which largely turned on its facts, HHJ Cotter QC, sitting as a High Court Judge found that the Defendant Trust was not liable for failing to return the Claimant to surgery prior to a significant neurological deterioration in his condition.


On the 9th June 2015, the Claimant underwent a complex operation to remove a tumour from his spinal cord. During the procedure, the tumour was successfully “debulked”, however it was not possible to suture the sheath containing the spinal cord. As a consequence, a form of patch was applied. Post-operatively cerebrospinal fluid leaked through the patch, and by the 15th June 2015, the spinal cord had herniated through the back of the spine. The herniation caused a distortion of the spinal cord, leading to Ischaemic Myelopathy and paralysis from the chest down.

It was not the Claimant’s case that there was any negligence involved in the operation. He was post-operatively monitored in order to detect, assess and treat any post-operative complications. In the five days prior to the herniation, he was assessed each morning by physiotherapists and occupational therapists. The consensuses of these assessments were that he was on an “upward trajectory” up to the 15th June 2015 (para 3). The nursing team contemporaneously recorded their observations in a chart headed “laminectomy observations” (para 4). In the afternoon of the 11th of June, an unidentified nurse noted a deterioration in the Claimant’s lower limb function. This deterioration wasn’t brought to the attention of the treating surgeon. It was the Claimant’s case that failure to notify the treating surgeon constituted breach of duty, and counterfactually had the treating surgeon been made aware of the deterioration he would have re-operated, preventing paralysis.

The trial judge, in essence was required to determine a single issue of fact:

  • Did the Claimant deteriorate on 11 June (as the laminectomy records suggested), in which case he should have been examined (and in the event of an obvious deterioration) be returned to surgery; or;
  • Did the Claimant’s neurological function deteriorate rapidly, in which case, no earlier deterioration could have made any difference to the outcome.


HHJ Cotter QC dismissed the claim.

Cotter J found that the evidence strongly suggested that the Claimant’s leg function had not deteriorated by the 11th of June. Specifically, at paragraph 123, he relied on the Claimant’s own recollection of events in coming to that view.

The judge considered that the entry in the laminectomy records (which appeared to support the Claimant’s case) was a misnomer. As such, even if the operating surgeon had examined hiim on the 11th, no action would have occurred because the Claimant would not have been adjudged to have deteriorated following such an examination. The claim was duly dismissed.

Our View

Ben Bradley, of Outer Temple’s clinical negligence team, has significant experience in running spinal injury clinical negligence claims (appearing recently and successfully in Younas v Okeahialam [2019] EWHC 2502 (QB). He commented on this case as follows:

This case perhaps demonstrates that ‘anything can happen at trial’. The experts in this case were in broad agreement. At first blush, the medical records appeared to support the contention that he had started to deteriorate (mandating a return to surgery before his catastrophic loss of function). However, the trial judge placed great reliance on the Claimant’s own account of his symptoms in the witness box. Absent of there being, in the judge’s view, any lay evidence of deterioration in neurological function, he dismissed the claim.

Read the judgment

Read the full judgment here.

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