C is now aged 48 and has had a history of spinal problems which began to emerge symptomatically in the Spring of 2012… pain, leg weakness and altered sensation. Over the next 2 years his difficulties with walking and pain fluctuated… He was significantly overweight which did not help. [1]
Matters deteriorated in the early summer of 2014… his pain and lack of mobility became so bad that he called an ambulance on 14 July 2014 and was taken to D’s emergency department. [2]
…MRI scans were then obtained and they disclosed two highly concerning areas of his spine – his spinal cord was severely compressed at the interface of the 10th and 11th thoracic vertebrae (‘T10/T11’) and there was cauda equina compression around the 3rd and 4th lumbar vertebrae (‘L3/L4’). [3]
He agreed to undergo emergency spinal surgery… This involved a laminectomy and discectomy to decompress the spinal cord at T10/T11 where it was severely compressed. [4]
C’s recovery was slow and incomplete. [5]
This case turns principally on the resolution of questions of fact. In large part (although not exclusively) it depends upon what was said when C visited D’s clinic on 13 July 2015. It requires me to consider what C was saying he was suffering from, D’s diagnosis of the causes of those complaints, the reasonable treatment alternatives which were available for the diagnosed conditions, and the explanations given to C of the respective benefits and risks of any such reasonable treatment alternatives so that he could make an informed choice before consenting to the treatment which D advised. [8]
D advised further surgery be undertaken at two sites, namely:
(i) a revision thoracic decompression of the exiting nerve root on the left hand side at T10/T11; and (ii) a lumbar decompression at L3/L4. [9]
The surgery took place on 13 August 2015. Whilst, again, there is no criticism about the quality of D’s surgery or post-operative care, very regrettably the outcome for C was to render him very significantly worse off than he had been before. He now suffers from what is called T7 AIS D incomplete paraparesis, confining him for the most part to life in a wheelchair. [10]
The evidence of C and D conflicts fundamentally in very many respects… assessment has in some respects been aided by reference to contemporaneously recorded notes and correspondence to reveal the accuracy of their recollections [11]
C has not satisfied me on a balance of probabilities that he would have declined the offer of having surgery in August 2015 if an injection (or any of the other mooted options) had been explained to him by D… I am not satisfied on a balance of probabilities that C would have sought another opinion or delayed making his decision. He wanted to have this surgery in order to relieve him of his terrible pain and he wanted it quickly. D assessed him appropriately, advised him adequately and pursued the claimant’s wishes. [95]
…claim is dismissed [96]
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