Spinal surgery: BC -v- Lancashire Teaching Hospitals NHS FT

The Claimant (C), a self-employed builder, labourer, and handy man, aged 44, was admitted to Royal Preston Hospital after falling from a roof. At the time of being admitted, the C was complaining of severe pain and discomfort in his back. Because of the C’s presenting symptoms a CT and an MRI Scan were performed which showed C had suffered a fracture of the L4 vertebral body with a large recto pulsed fragment into the spinal canal compressing the thecal sac.  C was advised that in order to repair the fracture he would have to undergo an operation which would involve the insertion of a cage and plating around the affected area.  He was consented for the surgery and the risks were described to him of infection, bleeding, CSF leak, bladder, bowel injury, impotence, metal construct failure, paralysing in legs, risk of major vessel, risk to life worsening and failure of the metal construct.

The operation took place on the 9^th December 2008 and following an x-ray, C was that the operation had been a success and the performing surgeon had been able to obtain a good position with the metal work, stabilising the C’s spine and fracture. Following the surgery, C made a good recovery and within a week of mobilising independently on the ward he was discharged. However, at the time of his discharge no post-operative brace was prescribed.

After approximately one month after the operation C started to experience increased back pain and over a gradual onset of time, he started to experience numbness in his legs and severe pain through to his toes and consequently, he returned to Royal Preston Hospital and explained the symptoms that he was experiencing.  As a consequence of which a further x-ray was performed on the 27^th March 2009 which revealed that the cage had slipped and the client had started to suffer spondylitis at the L5/S1 and C was advised that he would have to undergo a further operation in order to resolve the symptoms that he was experiencing.  The operation took place on the 3^rd April 2009 and again an interoperative check x-ray was taken which showed a satisfactory position in relation to the metal work used in the surgery.

Following the surgery, a brace was recommended and indeed on this occasion the client did receive the appropriate brace. Again, following a short stay in hospital, C was discharged on the 8^th April 2009.  However, he was advised before he was discharged that he would have to be readmitted for a further piece of surgery to complete the treatment.  C was re-admitted on the 1^st June 2009 for revision anterior surgery and replacement of the cage.  Again, he was consented, and he was advised of the risks involved with the procedure.  These being infection, CSF leak, Paralysis or numbness, loss of bladder and bowel function etc.  A further x-ray was taken on the 11^{th of} June 2009 and the cage around the spine was found to be in a satisfactory position. Again, after a short stay in hospital, C was discharged on the 30^th June 2009.

However, during his stay in hospital on this occasion he started to experience some post operative problems and these were highlighted and identified in a number of observations that were taken.  Most notably in relation to his urea and creatinine levels.  His urinary output levels and the fact that he was ileus for a significant period.  However, despite these warning signs, no further treatment or investigations were prescribed.  Throughout the remainder of 2009 C continued to experience problems with abdominal bloating and constipation and problems passing water and therefore attended his GP.  Due to significant pain and discomfort, C was unable to rehabilitate and undergo post-surgical physio therapy, to strengthen C’s back and allow him walk without walking aids.

Eventually C was referred to the urology department at the Royal Preston Hospital where initially he underwent a flexible cystoscopy. A left retrograde pyelogram followed on the 3^rd February 2010 which demonstrated that the dye was unable to pass through the urethea past the metal work at L4/L5.  A renal ultrasound demonstrated gross hydro-nephrosis and a DMSA scan showed the kidney to be non-functioning.

As a consequence, C underwent a nephrostomy on the 19^th July 2010 to drain the hydro-nephrosis.  As a consequence of the nephrostomy, C was advised that he had a blocked urethra and this has caused damage to his kidney. C continued to suffer complications and pain and discomfort and eventually on the 9^th September 2010, underwent a laparoscopic left nephrectomy.

C approached Mr Andrew Taylor, Solicitor and Partner who agreed to investigate the matter on a No Win, No Fee basis.  Andrew identified breaches of duty by Lancashire Teaching Hospitals in that the C was not referred for further radiological imaging and was not referred for further investigations in light of the dangerously high levels of urea and creatinine. Reports from Neurosurgeon, Physician and Nephrologist, Occupational Therapist and Architect, were obtained.

Proceedings were issued in November 2013 and interim payment of £30,000.00 was received in August 2014, with a further payment of £10,000.00 received in August 2015.

The matter was settled on 3^rd February 2016 by way of a Part 36 offer for the sum of £670,000.00 gross of interim payments in full and final settlement of the claim.  A breakdown of damages was not provided on this case. However, it is estimated that the general damages and special damages split is as follows, £125,000.00 General Damages  for pain suffering and loss of amenity (PSLA), which included loss of kidney, and C’s neurosurgeon identified a crucial lack of rehabilitation occurred following C’s spinal surgery, due to C’s pain due to the blocked urethra.  Absent the negligence, he would not have lost a kidney and missed a crucial period of rehabilitation which on balance would have stabilized the Claimant’s ability to walk, unaided and he would have gone on to recover, substantially better than he did.  An Accommodation Report was obtained, which identified the Claimant’s property to be unsuitable for his needs and couldn’t be adapted.  C wouldn’t have had to move property to a single-story accommodation, and he would have had a better prognosis.  £545,000.00 was recovered in special damages.  Allowance was given for the costs associated with moving property, because the C’s terrace property was unsuitable for his needs, loss of earnings, future loss of earnings and care.

Head of the Healthcare & Clinical Risk Team

Partner at Birchall Blackburn Law