by Mary Hough May-06-2014 in Healthcare Law
On 11 April 2014, after a 40 day hearing, Mr Justice O’Neill dismissed the case of Mr Richard O’Callaghan, who alleged he had become paralysed for two years as a result of negligence on behalf of the Defendant, Mr Frank Dowling following a complex spinal surgery in April 2005.
The Plaintiff was born in 1986 and early in life had developed the condition of kyphoscoliosis, which involved his spine growing abnormally into a bent position, both laterally and anteriorally. In 2005, when he was 19 and his growth had finalised, the angles and curvature of his spine had progressed to 90 degrees and it was agreed that surgery to correct the curvature was necessary and timely.
In respect of the conduct of the two-stage surgical procedure, it was alleged that the Defendant was negligent in carrying out the second stage of the operation without using SEP (an electronic form of spinal cord monitoring) and as a consequence of this, did not detect the injury to the spinal cord in time to reverse the injury. SEP was not available in the hospital and therefore the surgeon had opted for the “wake up test”, used during procedures where the patient is allowed to partially emerge from anaesthesia sufficiently to respond to verbal commands.
Mr Justice O’Neill found that the Defendant, in not using SEP in the operation, had deviated from general and approved practice. Therefore, the next question to be considered by the Court was whether in so deviating, the Defendant was guilty of an act that no practitioner of like specialisation and skill would have done had he been taking the ordinary care required.
The Judge concluded that in not using SEP, but at the same time using the wake up test, the Defendant was not engaging in a practice which no medical practitioner of like specialisation and skill would have followed and concluded that the Defendant was not negligent in failing to use SEP for the second operation on the Plaintiff.
In any event, the Judge was also satisfied that the failure to use SEP did not cause the neurological injury which afflicted the Plaintiff subsequently as the risk of injury to the spinal cord, while rare, was a well-known complication of surgery. The Court further found that the non-use of SEP did not lead to any exacerbation of the spinal injury, nor did the absence of SEP result in any loss of opportunity to have carried out an earlier correction, as the Defendant when he carried out the wake up test sensed something was not well and brought the Plaintiff back to theatre immediately where he removed all the metalwork placed in the spine.
A further allegation of negligence was made that the Plaintiff’s deterioration neurologically after the surgery was due to inappropriate mobilisation of the Plaintiff from 19–25 September at a time when the plaintiff’s spine was in a pathologically unstable condition. The Court found that there was little doubt that the process of neurological decline was in progress well in advance of the commencement of the mobilisation and did not cause the neurological deficit which ultimately went on to render him paraplegic.
The final allegations of negligence were whether or not the Defendant was negligent in failing to have arranged for the Plaintiff to be cared for by a consultant of equivalent or appropriate speciality while he was away from 17–24 September 2005 and in leaving instruction that the Plaintiff should be “mobilised as able”.
Mr. Justice O’Neill found that while the Defendant as the consultant in charge directs the rehabilitation of the patient, he must rely upon the professionals who are skilled in the process of rehabilitation. The Defendant was told nothing of any deterioration in the plaintiff’s neurological condition until 23 September 2005 and the Court found that it was difficult to fault the Defendant for not reacting to his deteriorating condition. The Judge also found that there was no evidence to suggest that the orthopaedic consultant covering for the Defendant did not have the requisite specialist qualification and experience to discharge such duties and commented that the Defendant might very well have found it impossible to find a surgeon with his exact speciality available to act as a locum for him in Ireland.
The Court concluded that the cause of the Plaintiff’s neurological deterioration leading to paraplegia and his subsequent recovery two years later had not been explained or established by any of the expert evidence in the case and remained shrouded in mystery.
For further information contact any member of the Hayes Healthcare Team.
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About the Author
Mary Hough
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.