Henry v Oxford University Hospitals NHS Foundation Trust [2020] EWHC 3306 (QB)
This claim concerned posterior instrumental fusion surgery which took place on 22 July 2010. The Claimant alleged that there was failure to recognise misplacement of the L5 pedicle screw, either intra-operatively, in the immediate post-operative period or longer term. No issue was taken with the placement of the pedicle screw. The Claimant’s case was that he suffered impingement or irritation of the L5 nerve root caused by the pedicle screw from July 2010 until its removal in 2015. The Claimant ultimately underwent removal of the screw. Whilst initially this brought relief, his pain levels slowly increased to pre-surgery levels.
Ultimately, Master Cook found against the Claimant. He found that whilst the pedicle screw was misplaced, the misplacement was minor and was not a breach of duty. He further found that AP imaging and a radiolucent table were used during the procedure, and therefore no breach was made out on that ground. Furthermore, and crucially, he found that, following the procedure, the Claimant did not develop new pain or neurological deficit, rather he was reporting the same pain as pre-surgery albeit at different intensities. Furthermore, he found that the misplaced pedicle screw was not touching the nerve root at any point. Additionally, the pedicle screw was not the cause of the Claimant’s symptoms and, despite its removal, the Claimant’s pain returned.
Of particular interest may be Master Cook assessment of the Claimant’s experts – he noted that the radiology expert “only considered the issue from his own point of view” [51] and the spinal surgery expert’s approach was “partisan, rather than taking an objective view of the evidence contained in the medical records, he has attempted to select medical records which fitted in with his view of the case” [53]. In contrast, he found both treating clinicians, and the Defendant’s experts, to be more reliable. Furthermore, Master Cook commented that, whilst the Claimant tried his best to give honest evidence, he was a poor historian which he found unsurprising, given the level of painkillers the Claimant had been taking for a significant period of time.
