Lesforis v Tolias [2019] EWCA Civ 487 (25 March 2019)

A, a consultant neurosurgeon, appeals against the decision of Martin Spencer J dated 21 May 2018 whereby, following a trial on liability, it was held that he had been negligent in giving an inappropriately early prescription of antithrombotic medication for R, following spinal surgery. [1]

The judge further found that A’s negligence caused or at least materially contributed towards the formation of a haematoma leading to compression of R’s spinal cord which in turn caused or materially contributed to the neurological deficit which she has sadly suffered… [2]

The sole ground of appeal is that the judge failed directly to address the case that the relevant question was not whether A’s practice of routinely giving antithrombotic medication to all his cranial and spinal patients within 6 hours of surgery was a breach of duty, but whether giving such medication to this patient within three hours of surgery was a breach of duty given what were accepted to be three risk factors specifically applicable in her case. [4]

The judge cited the evidence given by A as to why he had prescribed CP when he did, as set out in the unchallenged evidence in his witness statement: “… At the end of the operation I prescribed subcutaneous Clexane for her once daily. I see that that prescription is criticised and I can only say that it is my invariable routine to give patients anti-coagulation after this sort of operation. An overweight patient such as R, particularly one who is going to remain flat for 48 hours after the operation because of the durotomy, is at increased risk of venous thromboembolic events and therefore Clexane is indicated, along with intermittent calf compresses which were also prescribed (in accordance with NICE guidelines). However, it is my normal practice to give anti-DVT chemo-prophylaxis (Clexane) very early post-operatively to all my cranial or spinal patients and I am surprised to see it is criticised in the Letter of Claim.” [19]

…I do not agree that the judge addressed the wrong question. On the judge’s findings the three risk factors did not justify any departure from what he found to be the routine safe practice. It was therefore understandable that he should make findings by reference to what was “routine”. Equally, when the judge referred to the fact that there might be specific justification in the specific circumstances of a case for giving CP within six hours of surgery, he was clearly referring to circumstances other than the three risk factors. He did not address the specific question he there posed because, in the light of the findings he made, it did not arise in this case. [48]

… dismiss the appeal. [53]