Lesforis v Tolias [2018] EWHC 1225 (QB) (21 May 2018)

On 27 June 2013, C underwent spinal surgery at the hands of the D, a consultant neurosurgeon. (paragraph 1)

Towards midday on 29 June 2013, C began to suffer neurological deficit in the form of inability to move her ankles and toes with a consequent inability to walk or weight-bear. Further exploratory surgery was carried out by D at midnight on the night of 29 June 2013, but this failed to relieve c’s neurological deficit, and she has been left with serious residual and permanent disability in the form of incomplete paraplegia. (paragraph 2)

C seeks damages from D for allegedly inappropriately early prescription of antithrombotic medication and alleged delay in carrying out the remedial surgery. (paragraph 3)

For C, it is alleged that the cause of the deterioration in C’s neurological condition on 29 June 2013 and thereafter was a compressive epidural haematoma, itself caused by the early administration of Low Molecular Weight Heparin (“LMWH”) which had been given as chemo-prophylaxis against the formation of DVT. The formation of a compressive haematoma causing neurological symptoms is a medical emergency and requires immediate re-operation to evacuate the haematoma and relieve the pressure on the dura and its contents, the nerve roots, so as to avoid permanent neurological injury. It is the C’s case that, after the onset of neurological symptoms, there is a window of opportunity during which, if the problem is alleviated, there is a good chance that the nerves will recover and function will be restored. Although it is acknowledged that C might well have been left with some residual symptoms, these would have been minor compared to the devastating condition in which she now finds herself. It is alleged against D that, firstly, chemo-prophylaxis was given much too soon after surgery, at a time which was outside normal practise and which negligently increased the risk of haematoma formation, as occurred. Secondly, upon neurological deterioration, D should have arranged for a MRI scan to give himself the full picture of what was going on and in order to inform his clinical decision making. Finally, it is alleged that there was a negligent delay in re-operating. It is alleged that decompression should have been achieved by about 4pm on 29 June 2013 rather than after midnight on 30 June 2013 and this delay of eight hours or so was fatal to C’s chances of recovery. (paragraph 33)

For D, liability is denied. In relation to the giving of chemo-prophylaxis, it is agreed on all sides that this was appropriate. The only issue surrounds the timing. At the time of this operation, although there were NICE guidelines, these did not give any guidance or assistance in relation to the timing of chemo-prophylaxis. It is D’s case that there was a wide variation in practice and an absence of literature either telling practitioners when to give chemo-prophylaxis or establishing that the risk of post-operative haematoma is significantly increased by the giving of very early chemo-prophylaxis. Thus, it is denied that the practice of D in giving chemo-prophylaxis when he did can be said to be negligent within the “Bolam” test. So far as the obtaining of a MRI scan is concerned, it is the D’s case that he had all the radiological evidence that he needed from the CT scan that was carried out in the early afternoon of 29 June to make the management decisions required. MRI was not available as an emergency at the Harley Street Clinic (this was not his responsibility) and although he could have transferred C to a NHS hospital for a MRI examination, this would have involved delay. In any event, a MRI would not have changed the situation or caused him to act differently. Finally it is D’s case that the clinical position with which he was confronted was unusual and difficult. He was told… that it was highly unlikely that there was a compressive haematoma at the site of his operation which was causative of C’s condition. His case is that the absence of muscle movement in the ankles and toes was indicative of a problem at the L5/S1 level which was distal to his operative field and was an area of the spinal cord which was seen on the CT scan to be wholly clear of compression. Even if compression could not be wholly ruled out at the operative site, his view was that this would not explain a lesion which appeared to have selected the L5/S1 nerve roots to the exclusion of the L3/S4 nerve roots or, indeed, the S2-S5 nerve roots. He therefore justified his decision to give steroids in the form of Dexamethasone and to see whether they resulted in an improvement by treating any inflammation. After the Dexamethasone failed to produce any change at all, he then decided to re-operate, principally to explore the wound and because it was the only option left to him at that stage. However, he held out little hope of any significant improvement. He denies that it was negligent for him to fail to operate earlier than he did. (paragraph 34)

…three key issues for determination: a) Whether it was negligent to administer Clexane (that is, chemoprophylaxis in the form of LMWH) within six hours of the operation; b) Whether it was negligent to delay intervention after 14.30 until surgery at midnight; c) Whether the early administration of Clexane and/or the delay in intervention were causative of the permanent nerve damage… (paragraph 36)

…in relation to the first allegation, namely the inappropriately early prescription of chemo-prophylaxis, both breach of duty and causation are made out thereby entitling C to judgment. (paragraph 66)

…there was no negligence on the part of D in relation to his decision-making on the afternoon and evening of 29 June 2013… (paragraph 74)

…there shall be judgment for the Claimant. (paragraph 78)