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A recent court decision is causing a stir amongst medical negligence lawyers. The first instance decision in Pomphrey v Secretary of State for Health and North Bristol NHS Trust dated 26 April 2019 looks at first blush as if it has changed the principles laid down by Chester v Afshar, which itself was a landmark decision of the House of Lords.
Chester v Afshar involved a Claimant who suffered neurological injury during surgery on her back which was not caused negligently. She was allowed to recover compensation because she successfully argued that had she been properly advised about the risks of the surgical procedure she underwent she would not have had surgery on that day. The court allowed recovery on the basis that the injury arose from the risk of which the Claimant should have been warned so the injury was to be regarded as having been caused by the doctor’s failure to warn.
Mr Pomphrey suffered serious complications as a result of spinal surgery. It was accepted that the surgery had not been performed negligently but the case was brought on the basis that there was a failure to diagnose compression of the cauda equina nerves and earlier referral to a neurosurgeon should have been made. Further, when the neurosurgeon reviewed Mr Pomphrey, he should have operated earlier than he did. Had that occurred, the Claimant’s lawyers argued that Mr Pomphrey would have avoided deterioration in his condition and permanent disability. The defendants’ countered that Mr Pomphrey’s symptoms were not due to compression of the cauda equina nerves but rather arose from a spinal stenosis and that his cauda equina syndrome was an unfortunate non-negligent complication of the surgery.
The judge was not impressed with the Claimant’s factual evidence and preferred the defendants’ experts to the Claimant’s resulting in a finding that the Claimant had failed to establish that he was suffering from cauda equina syndrome prior to the surgery. Further, although the judge found there was a 10 day delay in performing surgery he felt that, on balance, the tear in the dura (the sac covering the spinal cord) that led to the Claimant’s significant injury was likely to have occurred on an earlier occasion so the delay made no difference to the outcome.
Given that the inherent risk of the dural tear occurring was said to be 7% the judge’s ruling will be surprising to those lawyers who have become used to arguing that, as this risk had a less than 50% chance of occurring, the injury would not have occurred on the balance of probabilities if surgery had occurred on a different day.
However, the above is to misunderstand the Chester v Afshar principles. Ms Chester was able to recover for her neurological injuries because Mr Afshar had failed to warn her of the small risk of suffering cauda equina syndrome, which risk then eventuated when he operated upon her. The injury arose from within the scope of the duty of care that was owed to Ms Chester whereas in Mr Pomphrey’s case the delay in operation had no effect on the dural tear that eventuated.
Denying the Claimant compensation for serious injuries seems harsh particularly where there were delays in providing treatment. However the judge refused to extend the narrow principles set out in Chester v Afshar and medical negligence lawyers would be well advised to review the way in which their cases for serious spinal injury are currently pleaded.
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