See important information in relation to COVID-19 and our services here

Case of note: Henry v. Oxford University Hospitals NHS Foundation Trust (High Court, December 2020)

Date published:

Mr. Henry was a carpenter who suffered long-standing back pain and sciatica following an accident at work in 1990.  In 2010 he underwent surgery which involved the insertion of bilateral pedicle screws in his back, secured with metal rods.  Unfortunately he continued to experience severe symptoms after the procedure and in 2014 a scan demonstrated that one of the screws was breaching a nerve cortex (outer skin), although clinicians could not be certain that this was irritating the nerve root.  In 2015 the claimant opted for removal of the metalwork, and although initially he was pain free, within a month he reported back pain and sciatica once again.  These problems have continued.

It was alleged that the trust failed to recognise the misplaced screw and missed opportunities to identify that it was causing problems.  The expert spinal surgeons, instructed by each party, agreed that one pedicle screw situated at L5 (the lowest lumbar vertebra) was misplaced but its intrusion into the neural canal was not great.  They also concurred that such misplacements were common.  The expert radiologists agreed that whilst the nerve root was very close to the screw it did not appear to be compressed or deviated.

Professor Lavy, who oversaw the operation in 2010, gave evidence to the effect that when a colleague had inserted each of the screws he personally checked the placement of each using the theatre image intensifier.  He used both lateral and anterior posterior views to confirm satisfactory placement in respect of level, depth, alignment and angulation.  The judge accepted this evidence totally.  Mr. Bowden, another consultant orthopaedic surgeon at the trust, examined the claimant in 2011 and found no neurological deficit.   The trust’s expert spinal surgeon opined that if a screw was close to, but not moving or compressing the nerve root, that would not be sufficient to cause either radicular pain or neurological deficit.  He found it hard to understand why, if the screw had been causing pain, its removal would not have abolished that pain.

The judge stated that the medical records demonstrated Mr. Henry had reported the same type of pain both before and after removal of the metalwork, namely severe lower back pain radiating into the left leg.  Master Cook concluded that whilst the screw had breached the cortex to a minor degree, it had not intruded into the neural canal and that such minor misplacements were common.  Accordingly there had been no breach of duty.  The claimant suffered the same pain both before and after the 2010 operation.  Consequently, causation had not been made out and the claim therefore failed.

Comment

The claimant experienced back and leg pain for decades and seems to have had little relief despite the attention of numerous skilled clinicians.  Although it is understandable why minor intrusion of a screw into the nerve cortex might potentially have caused further pain, the fact that Mr. Henry continued to suffer in the same way following removal of all the metalwork was a very strong indication that the screw had not been contributing to his problems.