14 July 2020
H.C. And Hull and East Yorkshire NHS Trust
The Medical Treatment
Circumstances surrounding the claim arose on 17 October 2016 when the Claimant underwent an MRI scan of her cervical spine. Following the MRI scan, the Claimant was referred urgently to neurosurgery as her scan was suggestive of compressive myelopathy at C5/C6.
The Claimant attended a consultation with a Consultant Neurosurgeon, in December 2016. Heconsidered the Claimant’s presenting symptomatology of an eight month history of worsening neck pain with a cracking sensation. The Claimant also reported shakes in her right upper limb and pain down her left upper arm down to her elbow and pins and needles in both hands (more on the right). The Claimant explained that because of her symptoms, she struggled to dress herself, use cutlery, began dropping things and had experienced a deterioration in her handwriting and reported that she felt unsteady walking.
The Neurosurgeon confirmed that the Claimant’s history of symptoms was suggestive of cervical myelopathy and he recommended surgery to decompress neuro structures and spinal cord with the aim of preventing the progression of the Claimant’s symptoms and further neurological deterioration.
On 25 January 2017 the Claimant attended a consultation with another Consultant Neurosurgeon who examined the Claimant in clinic and reviewed her MRI scan.
It was planned the Claimant would undergo a C5/6 and C6/7 anterior discectomy and fusion (ACDF) on a routine basis. The Claimant underwent the planned procedure on 24 April 2017.
The Claimant was discharged from the Defendant Trust following a post-operative assessment on 25 April 2017 after it was noted that she had full power and normal sensation in all four limbs.
Following her surgery and discharge from the Defendant Trust, the Claimant reported a considerable amount of pain in her neck, more than what she experienced prior to the operation, which she assumed was as result of the invasive surgery. Thereafter, the Claimant attended her GP and obtained strong painkillers in attempt to ease some of her pain.
The Claimant was unable to lie flat and was required to sleep in a chair following surgery. She reported that along with increased pain, she had become aware of being clumsier and had begun to accidentally knock things over. As a result of her symptoms, the Claimant consulted her GP, who thereafter referred her back to the Defendant Trust.
On 25 August 2017, the Claimant was discussed in the neuro spinal multi-disciplinary team meeting at the Defendant Trust, and it was noted that revisional surgery was required by way of an anterior discectomy + or – vertebrectomy.
The Claimant underwent her revision surgery at the Castle Hill Hospital, part of the Defendant Trust, on 2 November 2017. The surgery was a C6 and C7 corpectomy plus a C3/4 ACDF.
Following her revisional surgery, the Claimant was discharged on 3 November 2017. The Claimant developed complications as the wound site leaked blood-stained fluid and this affected her neck brace as it was sitting on top of the drain wound. The Claimant attended the A&E Department at Scarborough General Hospital and it was noted that there was swelling to the right side of the Claimant’s neck, she found it tender to touch, and it felt warmer than the left side. The Claimant was advised to contact another Neurosurgeon to arrange review as soon as possible.
The Claimant attended a consultation with the further Consultant Neurosurgeon, at the Defendant Trust on 20 March 2018. It was noted that although she had improved following surgery, some things had deteriorated and that she had some pains in her shoulders and upper arms. The Claimant explained that she experienced difficulties in lifting the kettle and swallowing.
A CT scan was arranged, and it revealed that the osteophytic compression of the spinal cord had been drilled away, but also that the cage was settling into her osteoporotic bones and had pushed the locking plate out of the bones. The Neurosurgeon noted that this may need to be removed in the future and elected to adopt a watch and wait approach. The Claimant continued to suffer from the complications of her surgery which include pain and difficulty swallowing.
The Legal Case
Longden Walker & Renney were instructed and an expert Consultant Spinal Surgeon was approached to review the Claimant’s medical records and instructed to report on liability and causation. He provided a liability and causation screening report that the Claimant’s claim was far more complex than initially believed as the Claimant was also found to have a rare condition known as ossification of the posterior longitudinal ligament (OPLL).
The expert advised that OPLL is a constitutional condition where the ossification of the ligament can cause cervical cord impingement and compression. As in the Claimant’s case, OPLL may coexist with the more common degenerative disc/osteophyte complex which causes cord compression at the level of degenerative disc. The calcification caused by OPLL behind the vertebral body is not accessible through the disc space in the same as the much more common degenerative disc/osteophyte is, and therefore cannot be surgically addressed by a simple ACDF procedure.
Furthermore, the expert Neurosurgeon explained that the Claimant’s treatment fell below a reasonable standard as she should have been treated by a Neurosurgical Spinal Surgeon and not by a Neurosurgeon. The expert reported that but for the negligence the Claimant would not have required the revisional surgery or suffered the significant subsequent complications.
Another expert Consultant Neurosurgeon was thereafter approached to review the Claimant’s medical records and report on issues of liability and causation.
He provided a detailed and complex 22 page report that the preoperative MRI showed that the proposed operation of a 2-level ACDF was unlikely to achieve adequate decompression of the cord.
He explained that the calcified ligament behind the body of C6 would be inaccessible via either of the adjacent disc spaces and therefore the spinal compression was very unlikely to be relieved by the surgery the Claimant underwent. It was his opinion that the Claimant should have undergone a C6 corpectomy with plating procedure in place of the ACDF surgery in April 2017.
Concerns were also raised regarding the standard of surgery during the Claimant’s first operation. The expert explained that the post-operative MRI scan showed very little difference in appearances in the compression of the spinal cord even at the level of disc space. The post-operative CT scan showed significant remaining osteophytes even at the level of the disc space and he suggested that these should have been removed.
Following receipt of the complex medical evidence, a detailed Letter of Notification was prepared and put to the Defendant Trust.
The Claimant’s updated GP and Hospital records were obtained, and a Nurse was instructed to screen the records and prepare a detailed chronology of medical events thereafter.
Thereafter, the expert was instructed to update his liability and causation report and provide further comments with regard to causation upon review of the Claimant’s updated medical records and report on condition and prognosis. His detailed and complex 21 page condition and prognosis report was carefully considered and discussed with the Claimant who provided further instructions on how to proceed with her clinical negligence claim.
Following receipt of the expert’s addendum liability and causation report and condition and prognosis report, a detailed Letter of Claim was prepared and put to the Defendant Trust.
It was alleged in the Letter of Claim that the surgery performed on the Claimant in April 2017 was not the correct surgery. The pre-operative MRI scan showed that the proposed operation of a 2 level ACDF was unlikely to achieve adequate decompression of the cord. The Claimant needed, at minimum, a C6 corpectomy.
The Letter of Claim also alleged that the standard of the surgery in April 2017 did not meet the standard of a reasonable and competent body of neurosurgeons. The post-operative MRI showed very little difference in appearances in the compression of the spinal cord even at the level of the disc space. The post-operative CT scan showed significant remaining osteophytes even at the level of disc space and they should have been removed.
In respect of causation, it was alleged that but for the negligence of the Defendant Trust, the Claimant would not have required the second surgery. She would have avoided the post-operative complications and on the balance of probabilities would have avoided the cage sinkage.
If performed in the first instance, the surgery the Claimant required, would have been much less extensive than what she underwent.
It was also alleged that but for the negligence of the Defendant Trust, the Claimant continued to suffer left arm pain which was caused by the ongoing compression as a result of the remaining significant osteophyte which had been discussed following and MRI scan in August 2017. It was alleged that had the Claimant undergone the correct operation in the first instance, the pain in her left arm would have been relieved.
The Defendant Trust served their Letter of Response in which they denied both breach of duty and causation.
A response was prepared and sent to the Defendant Trust which explained the Claimant’s position and noted that meanwhile it was accepted that the Claimant was warned that she may require further surgery, it does not mean that further surgery was acceptable if the first operation was below an acceptable standard.
A Part 36 offer in the sum of £20,000.00 was prepared and discussed with the Claimant who provided authority to serve the Part 36 offer to the Defendant Trust on 24 April 2020.
The Defendant Trust accepted the Claimant’s Part 36 offer in the sum of £20,000.00 in settlement of the claim.