How can medical negligence contribute to a spinal injury?
At its most basic dictionary-definition level, negligence is when care falls below the standard of a competent medical practitioner. However, this leaves the term open to interpretation for many of us, so how can medical negligence be proven when it comes to spinal injury?
The types of medical negligence that can lead to spinal injury
Despite people’s best intentions, sadly medical treatment sometimes either fails to avoid severe spinal injury, or even causes it.
There are three main ways in which medical negligence can lead to a spinal injury, namely:
- Delays to treatment
- Failures in diagnosis or treatment
- Not providing patients with accurate information, or not involving them properly in decision-making.
These are not mutually exclusive, as often cases can involve more than one of these having taken place. No two cases are exactly the same either.
How delays to treatment can cause spinal injury
The effects of delays to treatment can be fairly obvious. As with many things, if action is taken swiftly following the identification of an issue, the outcome could be very different.
A good example of this is Tait v Gloucestershire Hospitals NHS Foundation Trust. In this case, Mrs. Tait suffered an acute episode of lower back pain and was taken to hospital. A disc prolapse was suspected and an MRI scan discussed, but she was later discharged from hospital without one. The next day she was re-admitted with signs of cauda equina syndrome. An MRI scan showed a massive disc prolapse and she underwent surgery.
As a result of the delay she had full cauda equina syndrome, with double incontinence, loss of sexual sensation, leg weakness and pain. Had she been operated upon on first admission, as she would have been if they had done an MRI scan then, she would have had a far better outcome. She was therefore awarded substantial damages.
Another example that involves delays is J v Poole Hospital NHS Foundation Trust.
J was suffering from severe back pain, and was referred to hospital by her GP. An MRI scan was carried out to exclude spinal infection, but it was only carried out in the lumbar spine. This was done despite the fact that spinal abscesses occur commonly in the thoracic spine.
The abscess was therefore missed for two days, during which time the abscess grew and began to impinge on the spinal cord.
Although J was (eventually) operated on, it was too late to avoid her becoming tetraplegic. Had the diagnosis been made two days earlier the operation would have allowed her to make a full recovery. Instead she is now a wheelchair user, and requires care for her daily living needs.
As you can see though, it wasn’t just the delay of treatment that caused J to become tetraplegic, but errors in diagnosis.
How failures in treatment or diagnosis can cause spinal injury
Due to the sensitivity of the spinal cord, failures in diagnosis or treatment can lead to life-changing disabilities.
There are many examples of this area of medical negligence; however the following cases demonstrate how failures at different points of treatment can change people’s lives in similar ways:
- Griffiths v Secretary of State for Health
Mr Griffiths sustained a severe spinal cord injury after falling down the stairs in his home. When the ambulance crew attended, they assumed he had suffered a stroke so no steps were taken to immobilize his neck (as suggested by NICE guidelines).
Instead, Mr Griffiths was placed in a sitting position, and carried to an ambulance in a carry chair, and as a result became tetraplegic.
Negligence was admitted on behalf of the ambulance crew, but the court had to determine whether the “manhandling” caused the deterioration. It was decided that, given that deterioration of this nature is uncommon, and the most common cause is “manhandling”, it was the most likely cause here.
- May v Lancashire teaching Hospitals NHS Trust
When Miss May was a child, she had scoliosis. She had an operation to achieve some correction of the curvature of her spine, and to prevent further progression of the condition. Tragically, after the operation she was paraplegic.
Following the operation it was found that a pedicle screw had been misplaced at the sixth vertebra. The surgeon was found to have been negligent as he had failed to use necessary ‘bi-planar’ imaging during the operation, which would have shown the depth of the screw and whether it was going too far sideways and impinging on the spinal canal. He had also negligently failed to use spinal cord monitoring equipment, which provides continuous assessment of the function of the spine, so that if compromise was suspected or detected the surgeon could investigate.
How failing to gain proper, informed consent can lead to negligence claims as a result of spinal injury
To give effective consent to treatment, a patient should be warned of all material risks.
A material risk is one which the patient would be likely to consider significant, not the doctor.
If a patient has not been warned of all risks (which they might consider significant), it may be that they have not given actual consent, should they be injured by the procedure to which they “consented”.
Following the case of Montgomery v Lanarkshire, decided by the Supreme Court in 2015, the courts are very concerned to ensure that patients’ autonomy is respected. This means patients need to be kept properly informed of everything they might deem important (including, for example, the identity of the operating surgeon).
The following examples demonstrate the different ways in which patients can be misled into giving ‘consent’ as a result of negligence.
Failing to accurately inform the patient of risks (Thefaut v Johnston, 2017)
Mrs Thefaut was suffering with pain in her lower back and legs. She had a discectomy (removal of a herniated disc that is pressing on the spinal cord or nerve root) at L4/5, carried out by Mr Johnston. Prior to the operation he sent her a letter in which he told her:
- There was at least a 90% chance of curing her leg pain;
- The back pain was “not quite as likely to settle” but there was “every chance” that it would;
- The risks of surgery were “very small”;
- There was a 2% chance of leakage of spinal fluid;
- There was a 0.1% chance of damaging the L5 nerve root.
The court found that, in fact:
- There was about an 85% chance of curing her leg pain;
- There was about a 50% chance of curing her back pain;
- There was an up to 5% chance of (non-negligent) surgery exacerbating her condition;
- The 2% chance of leakage of spinal fluid was correct;
- There was about a 1% chance of damaging the nerve root.
Mrs Thefaut gave evidence that if she had been given the correct information she would not have had the surgery, and the court accepted her evidence.
Since the surgery in fact significantly worsened her condition she recovered damages.
Failing to inform a patient about changes to treatment (Crossman v St George’s Healthcare, 2016)
Mr Crossman had numbness in his left arm and pain in his neck. An MRI scan showed degenerative changes and narrowing of the spinal canal, with minor compression of the cord at C3/4 and C5/6. He was advised to have conservative treatment including physiotherapy with a review in three months’ time.
However, he was put on a waiting list for surgery and then asked to attend for a pre-operative assessment. No further mention was made of the physiotherapy, and he was admitted to hospital and underwent surgery – laminectomy and foraminectomy.
Unfortunately Mr Crossman suffered an injury during the surgery – a radicular nerve injury.
The court found that if the hospital had not forgotten that Mr Crossman was supposed to have a three month course of physiotherapy, he would not have had the operation on that occasion. Therefore he would not have suffered the injury.
Failing to inform the patient about who would be operating on them (Jones v Royal Devon and Exeter NHS Foundation Trust, 2015)
Mrs Jones was referred to a particular consultant in the Trust for her lumbar back pain. She saw that consultant but when she later underwent bilateral decompression surgery it was performed by a different surgeon. She suffered a dural tear, and damage to the nerve roots in the cauda equina. This was a recognised risk of the operation and not in itself negligent.
Mrs Jones’ case succeeded because she had not consented to the operation being performed by the surgeon who performed it. The surgeon who she thought had been going to do the operation had a national reputation and was regarded as pre-eminent in his field.
The implications of not gaining informed consent from a patient
The above examples demonstrate a number of issues around consent:
1 – Just because a patient has signed a consent form does not mean they have given valid consent to an operation.
2 – If the patient has not been informed of all material risks, they may have a claim.
3 – The patient would need to show that:
- If they had been informed correctly of the risks they would not have had the operation
- They have been injured or their condition has been worsened by the operation
4 – Doctors are under a duty to fully involve patients in decision-making and not make paternalistic decisions without consulting the patient (e.g. Crossman v St George’s Healthcare, 2016)
5 – In certain circumstances, a late change in the surgeon performing an operation may be enough to mean that there is no genuine consent.
The few examples above set out some possible mechanisms as to how spinal injury may happen as a result of negligence. Clearly there are many other ways in which a potential clinical negligence claim might arise as no two cases are the same, but these examples may inform you as to your options if you are concerned you could have been a victim of negligence.