Flanaghan v University Hospitals Plymouth NHS Trust
2019 EWHC 1898 QB
This was a spinal case heard by His Honour Judge McKenna at the RCJ. In 2008 the 59 year old claimant presented with some limited left sided spasticity due to degenerative changes in her cervical spine thought to be causing some cord compression. She was warned in clinic of the danger of future paralysis from a fall or accident but not advised to have surgery.
In 2012 she tripped on a pot hole and this resulted in cord further cervical cord compression such that she lost power in her right leg and had reduced power in her hands. A cervical discectomy and fusion was performed. However she suffered a further spinal injury during the course of the procedure.
In broad terms she alleged negligence –
2008 – failure to recommend immediate surgery or review every 2 years.
2012 – various failures in the choice of surgical approach and also to appreciate a CSF leak.
Experts – Mr Choksey (Claimant) and Mr Mannion (Defendant).
Outcome – the Claimant lost, essentially on the basis that the Judge preferred the evidence of Mr Mannion.
From a Bolam perspective, the case illustrates the following –
- The Judge appears to have applied the classic Bolam body of doctors test to all of the allegations – a perfect example of “Long Live Bolam !”
- The Judge set out some of Green J’s guidance on how to apply the Bolitho component of the Bolam body of doctors test from C v North Cumbria – more and more judges are doing so, illustrating what a great guide it is.
- The Judge agreed that the Claimant could not win unless Mr Choksey was preferred over Mr Mannion – and he was not. Of course, even if he had been, the judge would also have had to have gone further and find more than this – that Mr Mannion fell into the “Bolitho Exception” – under Bolam the Claimant plays both halves up hill and into the wind.
It’s a relatively short and interesting judgment – definitely worth a read. Here’s the link –
Dr Simon Fox QC