Surgeon Negligence Claim

Paul Brian Casey V East Lancashire Health Authority (2004)

An action in negligence against a health authority failed where causation could not be established on the facts.

A well recognised common side effect of that operation was spinal deformity, a serious kypho-scoliosis. C had such a deformity and was significantly disabled. C claimed that the tumour was not spotted as soon as it should have been, which was August 1987 when a doctor marked a chest X-ray, which showed the tumour, as clear. The health authority admitted that that constitued a breach of duty but contended that it had made no difference as C would have had to have very much the same treatment even if the tumour had been spotted when it might have been, and that C's disability now would in any event be the same. C's tumour was in fact spotted in February 1988.

Both parties supported the investigation of causation as a preliminary issue and the court considered

(a) whether the delay in spotting the tumour had the consequence that a laminectomy was carried out which would otherwise not have been performed;

(b) if yes, would C nevertheless have sustained disability such as he now carried;

(c) if no, whether the delay in spotting the tumour resulted in there being a disability which otherwise would not have occurred;

(d) whether the breach of duty caused C's disability which he would otherwise have avoided. C claimed that if the August 1987 X-ray had been interpreted correctly, he would have been investigated immediately, and his treatment would have begun with OPEC chemotherapy by the first week of September 1987 and that his treatment thereafter would not have involved a laminectomy.

The health authority claimed that even if treatment had started, as it should have done, in September 1987, there would have had to have been a laminectomy in any event because either it would have been the treatment of first recourse, or because, if OPEC was tried first, neither it nor any other sort of treatment would have dealt sufficiently with the tumour to avoid the need for laminectomy. In addition the health authority said that even if there had been no laminectomy, the disability now suffered by C would have ensued in any event as a result of the combination of insult from the tumour and other treatments C would have had.

HELD: Even if the initial referral had been to another doctor more inclined to use chemotherapy rather than carry out a laminectomy, on the basis of the evidence C would have had the laminectomy which he did. The five month delay in spotting the tumour did not create any impairment of function or measurable loss although it was likely to have added to the anxiety of C's family. However, the claim could not succeed. The reality was that the laminectomy which C underwent was an operation necessary in any event and that sadly, whilst helping to save his life and to avoid a worse disability, it carried with it the unavoidable side effect of his present serious handicap.

Judgment for defendant.

Negligence - Personal Injury

QBD (Preston) (Hughes J) 7/4/2004

LTL 15/4/2004 (Unreported elsewhere)

Document No.: AC0108179