The Unchanging Chance Of Winning On No.7 - Trial Success For The Defendant In Surgery Which Would Always Have Taken Place

In the recent case of Pomphrey v. Secretary of State for Health and North Bristol NHS Trust [2019] 4 WLUK 483, where DAC Beachcroft acted for the Defendants, the High Court specifically looked at the causative potency of complications from surgery that a patient would always have undergone and following detailed consideration found in favour of the Defendants.

In this briefing, we consider the future impact of these judicial findings and how they will be helpful in the defence of similar claims.

The facts

Pomphrey concerned an alleged failure by two NHS organisations, Bristol Community Health and North Bristol NHS Trust, to diagnose and treat cauda equina syndrome (CES), a potentially catastrophic condition where the nerves below the end of the spinal cord (known as the cauda equina) are damaged.

The Claimant, Mr Pomphrey, suffered from lumbar stenosis, a common back complaint involving narrowing of the spinal canal. His case, in a nutshell, was that from March 2011: 1) he had CES as a result of intermittent/episodic compression of the cauda equina nerve roots; and 2) as a result, he should have had surgery on an 'as soon as possible basis' and in any event earlier than the decompression surgery that was in fact performed in January 2012.

It was alleged that between March 2011 and May 2011 the Extended Scope Physiotherapists at Bristol Community Health failed to recognise the severity of the Claimant's symptoms and failed to refer the Claimant to hospital as a matter of urgency. He was in fact referred to North Bristol in mid-2011, and it was also said that there was an unreasonable delay by the neurosurgical clinicians at North Bristol in performing spinal decompression surgery.

The Claimant's decompression surgery in January 2012 (which was not the subject of any criticism) was complicated by a dural tear and a leak of cerebrospinal fluid. It was common ground that the surgical complications were responsible for the Claimant's injuries, specifically permanent severe CES manifesting itself in weakness and balance disturbance, bowel and bladder dysfunction, and loss of sexual function.

The Claimant's case on causation was that had surgery been performed earlier than January 2012, the complications would not have occurred and on the balance of probabilities he would have had a successful outcome from surgery.

The High Court Judgment

Regarding breach of duty, the Judge, His Honour Judge Cotter QC sitting in the Bristol District Registry...