Failes v Oxford University Hospitals NHS Trust [2020] EWHC 3333 (QB) (04 December 2020)

On 9 June 2015 C underwent an operation… to remove a tumour from within his spinal cord… During the very complex procedure the tumour was successfully “debulked” but it was not possible to suture the sheath that contains the spinal cord (the dura) and a form of patch was applied. Eventually there was a post operatively leak of cerebrospinal fluid through the patch and by the 15 June 2015 the cord had herniated through the back of the spine (part of which had been removed to allow access to the spinal cord; a laminectomy). The herniation resulted in increasing traction on, and distortion of, the spinal cord and/or the stretching of the blood vessels supplying the cord causing an ischaemic myelopathy and eventually permanent damage. C has been left paralysed from the chest down. It is not C’s case that the operation was performed negligently. [2]

It was very important that post operatively C’s neurological condition was carefully monitored in order to detect, assess and treat any post-operative complication. In the five/six days prior to the herniation C was assessed at a ward round each morning and also had three physiotherapy/ occupational therapy assessments. The very broad overview of the entries in the medical records resulting from these examinations /assessments was that C was recovering well from the operation; there was “an upwards trajectory” as regards neurological function in his lower limbs. [3]

In parallel to these examinations /assessments… the nursing staff commenced neurological observations, recorded about every four hours in the chart entitled “laminectomy observations”. In the afternoon of 11 June 2015, the records… showed the deterioration in C’s neurological condition; specifically his lower limb function. This deterioration was not brought to the attention of any Doctor. It is C’s case the failure to do so was a breach of the duty of care and that had the treating surgeon been made aware of the deterioration he would have immediately re-operated and as a result prevented paralysis. [4]

C’s case that by the 11 June he was symptomatic, as the observations on the laminectomy chart recorded, and that as a result emergency surgery was required. Such surgery would have saved his functioning so he would not now be paralysed… [9]

D’s case that the relevant laminectomy chart entries were wrong and/or their significance overstated as there was no neurological deterioration on 11 June 2015. Rather there was an acute deterioration starting in the evening of 15 June when C lost power in his legs and was unable to get up off the toilet. Reliance is placed on the examinations/assessments recorded in the medical notes and also the fact that C himself made no complaint of a deterioration in lower limb function power and/or sensation) before 15 June. [10]

D’s case that D would still not have re-operated even if he had been made aware of the recorded deterioration on the nursing laminectomy chart… given the results of his examination of C… on the morning of 12 June. He would not have re-operated unless a neurological examination had shown deterioration, and no such deterioration was found by him or subsequently, that lunchtime, by a physiotherapist [11]

There is a single factual issue at the heart of the case; when did C’s condition deteriorate. There is a secondary and linked factual issue of what D would have done had he been made aware of the entries in the laminectomy charts from 15.30 on 11 June 2015 onwards. [12]

had the entries made in the laminectomy chart from 15.30 on 11 June 2015 onwards been brought to the attention of D, as they should have been, subsequent detailed neurological examination would not have found any material deterioration in the lower limbs and C would not have been returned to surgery so as to have avoided the catastrophic deterioration that befell him. In my judgment he suffered an acute deterioration on 15 June 2015 and up to that point there had been an upwards trajectory… As a result the claim fails. [136]