Henry v Oxford University Hospitals NHS Foundation Trust [2020] EWHC 3306 (QB)

Date
7th December 2020
Court
Key Issues
, ,
Judge

In the case of Henry which largely turned-on expert evidence, Master Cook found the Defendant Trust not liable on any of the three counts of alleged negligence.

Facts

The Claimant brought a claim for clinical negligence arising out of posterior instrumental fusion surgery performed by surgeons within the Defendant Trust on 22 July 2010. The Claimant alleged there was a “failure to recognise misplacement of the L5 pedicle screw, either intra-operatively, in the immediate post-operative period or longer term” (para 1).

The Claimant’s case was not that the pedicle screw was wrongly placed; rather that he suffered irritation of the L5 nerve root caused by the pedicle screw from July 2010 until its removal in February 2015. Although the remedial surgery was successful, the Claimant continued reporting lower back pain and sciatic to his GP, with a progress note in October 2015 recording “although this helped initially his pain levels returned to the pre surgery levels and he continues to suffer from back pain and left leg pain” (para 15).

Negligence

The Particulars of Claim alleged three categories of negligence (para 16).

  1. Allegations of negligence during the surgery: A failure to use AP imaging and a radiolucent operating table and a failure to recognise the misplaced screw.
  2. Allegations of negligence in the days after surgery: A failure to act upon the Claimant’s complaint of symptoms and organise a CT scan.
  3. Allegations concerning subsequent scans and missed opportunities to identify that the misplaced screw that was causing Claimant’s problems: A failure in May 2011 to identify a left-sided radiculopathy could be related to the misplaced screw and failure to ensure the CT scan recommended in November 2011 was carried out and reported effectively and without delay.

At trial, the Defendant denied all aspects of the Claimant’s case; breach, causation, and quantum were all in dispute (para 18).

Dismissed

The spinal surgeons’ joint reported agreed there was a displacement of the screw and the issue of whether or not that screw required removal turned on the question of whether the misplaced screw was causing symptoms or not (paragraph 23).

Master Cook plainly preferred the opinion of the Defendant’s expert (Mr Williamson) finding the Claimant’s expert (Mr Spilsbury) to have taken a partisan and not objectively considering evidence adverse to Claimant in the wider medical records and wider history and misinterpreted a note by a treating clinician (paragraph 53). Further, he found he had raised a hypothesis in the joint report for the first time (paragraph 54).

In the result after hearing the radiologists and spinal surgeons’ evidence, Master Cook found that the pedicle screw was misplaced to the extent “there was a minor breach of the inferomedial cortex”, but that the intrusion into the neural canal was “not great” with such misplacements being “common” (para 56). Master Cook further concluded that AP imaging and radiolucent table were used and therefore, there was no breach of duty.

Centrally, Master Cook concluded that the L5 pedicle screw did not cause the Claimant’s symptoms (paragraphs 58 and 59) and, as such, “the claim fails both in relation to breach of duty and causation” (paragraph 61), with Master Cook providing judgment for the Defendant.

Our View

Louis Weston, a clinical negligence barrister at Outer Temple Chambers commented on the case:

This is a case that turns on its facts.

In any contested case a Judge or Master will need to prefer expert opinion over another, and this case turned on the Court’s appraisal of the credibility of the expert opinion of the parties’ experts. The Claimant’s expert is criticised for not considering adverse matters and raising at a late stage a novel hypothesis. These are the risks of calling expert evidence and demonstrate that a Court will generally prefer consistency of opinion and a full review and consideration of all evidence over a focused assessment.

Read the Judgment

Read the full judgment here.


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