The clinical negligence team at Penningtons Manches LLP has recently settled a claim against Nottingham University Hospitals for a client who underwent spinal surgery in 2009.  The client was a high-achieving elite athlete who was one of the top 10 fastest female cyclists ever in the UK over 10 and 25 miles.  She had Olympic ambitions but began experiencing pain in her lower back and was concerned this might interfere with her training. 

Investigations revealed she had a long-standing spondylolisthesis and several different surgeons recommended that she needed a spinal fusion to fix the slipped vertebrae and to decompress the nerves. 

In 2009, she was referred to a pre-eminent surgeon at Nottingham University Hospitals who agreed she needed spinal fusion and decompression and suggested the option of operating anteriorly through her abdomen. He explained this would avoid damaging muscles in her back but, as it  was an unusual option, he would need to consider it further.  The  client only saw him once again before he operated in October 2009.  She was clear that he had never described any of the risks of anterior surgery compared to posterior surgery to her.  In the meantime, she had an appointment with one of the surgeon's colleagues, who explained that anterior surgery would be inappropriate.  He properly explained the nature and risks of posterior surgery to her and she consented to that procedure. 

The client did not see the original surgeon again but was told on the morning of her operation that the surgery would be done anteriorly.  When she asked to speak to the surgeon, she was told he was unavailable and, if she did not agree to the surgery that day, her surgeon would be unable to operate.  She therefore agreed to the surgery.

The surgery did not achieve its intended outcome and she was left with very significant pain and weakness in her legs together with  bladder and gynaecological problems. We obtained expert evidence confirming that our client should have been advised that there were increased risks of nerve damage with anterior surgery because the surgeon cannot visualise the nerves, unlike in posterior surgery.  Our expert confirmed it was highly likely the nerves had been over-stretched, causing our client’s pain and motor problems after the operation. 

Although she has had revision surgery, she is left with pain and long-term weakness that affects her ability to stand for long periods.  She has never been able to return to sports at anywhere near her previous high level and her symptoms also interfere with her work. 

As the hospital denied throughout that the surgeon had failed in his duty to our client or that there had been any damage caused to our client's nerves during the operation, the case was heard in the High Court.  After the parties had exchanged their witness and expert evidence, the hospital made an offer to settle the case for a six-figure sum. 

Commenting on the case, partner Philippa Luscombe said: “Cases involving issues of consent can be difficult to establish legally but this client had a very clear objective for her surgery and was emphatic that she was never forewarned of the risks.  If she had known that anterior surgery meant the surgeon would be unable to see the nerves he was trying to decompress, she would never have agreed to that operation and would have insisted on a posterior approach. There was nothing in the notes indicating the reason for the anterior approach or that our client was advised on the different risks.  In our experience, a six-figure settlement is achieved only in cases where a defendant recognises it is open to substantial criticism.”