healthcare update - issue 10
Two similar cases, two opposing judgments
Two opposing judgements have recently come to light in cases
which, on the face of it, have very similar facts. We consider
why one defendant was found to be negligent and the other was
not.
Baldwin v Dodds
In Baldwin the claimant underwent an operation which
involved the insertion of two screws into the knee. The surgeon
drilled further than was required, cutting off the blood supply to
the caimant’s leg. Once the surgeon recognised the complication he
immediately called for assistance.
The Court found that the surgeon had drilled in a safe place and
that he had not been careless in conducting the surgery as
assistance was immediately requested.
May v Lancashire Teaching Hospitals NHS
Trust
The claimant in May was 12 years old when an operation
using pedicle screws was performed with the aim of correcting the
curvature of her spine. However, as a result of the
operation, the claimant was left paraplegic.
At trial, it was concluded that the damage was caused by a
pedicle screw penetrating the dura and compressing the spinal cord.
The Court found that the surgeon had been negligent in failing to
use available bi-planar imaging to assist with the insertion of the
screws. The trust was also found negligent in failing to provide a
spinal cord monitor which was readily available at most, if not
all, centres except at the defendant trust.
The empathy of the judge may have played some part in the claim
being successful in May; however, there are other factors
to consider.
Interestingly, the failure to use imagery in Baldwin is
not criticised, yet in May criticism centres on there not
being sufficient imagery. This apparent contradiction can be
explained by the risks involved and in accepted practices in the
different areas. In knee surgery, surgeons are guided by the sound
and feel of the drill which is considered reasonable.
In contrast, the surgeon in May failed to use all the
imagery equipment available to assist with the operation. His
justification for not using bi-planar imaging was that he found the
images “difficult to read”. The Court held that the serious nature
of the operation necessitated the need for further imaging.
The surgeons in both cases tried to rectify the problem when
recognised complications had occurred. In Baldwin the
surgeon immediately realised that he may have drilled too far and
sought assistance. In May it was not until the claimant
was woken mid-procedure that a problem was identified. Actions were
then taken to rectify the situation but were unsuccessful.
Following the procedure, the surgeon failed to accurately record
events in the notes and failed to preserve intra operative
images.
Ultimately, these cases highlight the necessity of careful risk
assessments before carrying out invasive procedures. The higher the
risk, the more precautions are required. Actions taken after an
incident can also affect a finding of negligence. A prompt response
and accurate recording will greatly assist the defence in any
potential litigation.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.