Sumner v Royal Surrey County Hospital NHS Foundation Trust & Anor

In a clinical negligence claim involving a missed unstable spinal fracture, the claimant must establish on the balance of probabilities that the breach caused loss. Where an unstable spinal injury is not diagnosed and the patient is mobilised, subsequent neurological deterioration is more likely to have resulted from further movement of the spine than from the natural progression of the original injury, absent an intervening cause. The court may assess competing medical theories by reference to the clinical chronology, accepted management guidance, statistical probabilities and the reliability of expert evidence. An admission of liability ordinarily accepts that some loss was caused, although the claimant must still prove the nature and extent of particular damage.

The claimant suffered a cervical spinal fracture after falling down stairs. The fracture was initially treated as stable, although it was in fact an unstable three-column injury. She was placed in a hard collar and mobilised. Her neurological condition later deteriorated substantially, resulting in tetraparesis and permanent disability.

The defendants had admitted a delay in diagnosing the unstable fracture and a consequent delay in surgery. They also admitted that timely surgery would have produced a substantially better recovery, while reserving disputes about the extent of injury and loss. At trial they advanced a theory that the deterioration resulted from central cord syndrome and would have occurred irrespective of the delay. The central issue was whether earlier stabilisation would probably have prevented the marked neurological deterioration.

1. Disposition. The claim succeeded. The claimant proved that the defendants’ failure to stabilise the unstable C6/7 fracture by 29 December 2010 caused the material neurological deterioration and resulting disabilities. General damages were agreed at £135,000 inclusive of interest. The court made findings of principle on the remaining heads of loss and directed counsel to calculate the final order.
2. The defendants’ admissions accepted that the admitted negligence caused some loss. A defendant who contends that the claimant would have suffered no loss at all should admit breach but deny causation, rather than admit liability. The claimant remained required to prove the nature and extent of particular damage.
3. The court preferred Mr Gardner’s evidence to that of Mr Jamil. The assessment of expert evidence required consideration of the inherent probabilities, contemporaneous medical records and published literature. The evidence showed stability or improvement while the claimant was kept flat and deterioration following mobilisation, particularly on 31 December 2010.
4. The received management approach for an acute unstable spinal cord injury was immobilisation, flat positioning and log-rolling. A hard collar alone did not sufficiently prevent movement of an unstable spine. The statistical and clinical evidence made it more likely that the deterioration resulted from further movement and intermittent injury or ischaemia than from spontaneous progression of central cord syndrome.
5. On the balance of probabilities, the injury was a flexion injury, although the causation conclusion would have been the same irrespective of the mechanism. Had stabilisation occurred by 29 December, the claimant would probably have retained normal mobility and bladder and bowel function, with some residual left-hand weakness. The alleged gastroparesis was not proved to have been caused by the negligence. Provisional damages were appropriate for the agreed small risk of later syringomyelia.