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Why does software ownership matter? Six key legal takeaways for tech businesses
Christopher Perrin
Richard Lodge represented a 79-year-old gentleman from Canada who travelled to the UK for spinal surgery on a privately funded basis. The claim was against a private surgeon for a failure to recognise and appropriately act upon a dural tear intraoperatively.
The purpose of the surgery was to stabilise degeneration in our client’s lumbar spine by inserting an interspinous spacer device. After the operation our client collapsed and experienced two major seizures. Upon being transferred to the nearest NHS Hospital with a trauma centre, his condition was stabilised in intensive care and subsequent investigations revealed a large dural tear. This had not been documented in the note of the operation performed within the private sector. Surgery to repair the tear was undertaken and the NHS surgeons noted a fresh ‘sealant like’ material covering the dural tear and recorded this in their operation note.
Causing the tear to the dura occurring in the initial spinal surgery was not considered negligent. Instead, our client’s case related to the presence of the sealant like material. We alleged that the sealant could only have been inserted during the original spinal surgery and the use of such material would not have been required other than to repair a tear. As such there must have been an unsuccessful attempt to repair the dural tear without documenting this within our client’s records.
The defendant initially denied causing the tear but later accepted that it must have occurred during surgery. However, his position was that this was not negligent and in any event the tear had not been recognised. He stated that no sealant had been used during his surgery. His case was that any tear identified would have been documented in the operation note and that the type of sealant that would have been used for a repair would have been reabsorbed into the body and not been visible to the NHS surgeons when they carried out their surgery 25 days later. The case was difficult because the burden was on our client, as the Claimant, to show that there was sealant present. The case essentially came down to the accuracy of the operation note by the NHS surgeons and a debate around whether the sealant like material was in fact surgical sealant.
Our client recovered well from his surgery but continued to experience lower limb and back pain upon walking longer distances. Due to being a foreign national, our client was subjected to significant NHS treatment charges which formed part of the claim against the private surgeon who performed the original surgery.
This was a challenging case with significant risks for both parties. Notwithstanding the difficulties, Richard Lodge secured a seven-figure settlement for our client.