Harris v Johnston

In a clinical negligence claim, the occurrence of a serious surgical injury may raise a prima facie case and shift the evidential burden, but it does not establish negligence by itself. The claimant retains the legal burden of proving that the surgeon’s conduct fell below the Bolam standard.

Where an unexpected anatomical abnormality causes an instrument to travel beyond its intended path, the court must assess whether the force and technique were unreasonable in the circumstances. Negligence cannot be inferred merely from an adverse outcome, the speed of an operation, or imaging showing little change. Deficient medical records may justify careful scrutiny and, in an appropriate case, adverse inferences, but they do not reverse the burden of proof.

Mrs Sally Harris brought a clinical negligence claim against Mr Francis Johnston, a consultant neurosurgeon, arising from a revision C6/7 foraminotomy performed on 3 November 2011. During the operation, a Cobb dissector entered a previously unsuspected cavity, penetrated the dura and injured the spinal cord.

Several allegations were discontinued during the trial, leaving the central issue whether the spinal cord injury resulted from negligent surgical technique or from an unavoidable accident. The court also considered the significance of incomplete operation records, the evidential burden, and the reliability of the competing neurosurgical experts.

1. Claim dismissed. The spinal cord injury was a tragic accident for which the defendant was not legally liable.
2. The claimant remained subject to the legal burden of proving breach of duty. The injury occurred during a procedure in which no instrument should ordinarily have approached the spinal cord. That fact raised a prima facie case and shifted an evidential burden to the defence, but it did not establish negligence without more.
3. The court accepted the defendant’s account that the Cobb dissector unexpectedly entered a long, narrow pseudomeningocele formed after the earlier surgery. It then followed the path of least resistance into the spinal canal and contacted the spinal cord. The defendant could not reasonably have been expected to anticipate the cavity, which was not visible on the available CT scan.
4. Applying the Bolam standard, the court found no sufficient evidence that the defendant used excessive or inappropriate force. The fact that the operation was performed at the faster end of an acceptable range, that symptoms later recurred, or that imaging did not show substantial bone removal could not collectively establish negligence where each factor was neutral or consistent with competent surgical judgment.
5. The failure to keep a fuller operation note justified rigorous scrutiny of the defendant’s evidence. However, this was not a complete absence of records, and the claimant was not materially prevented from challenging the defendant’s account. The principles concerning evidential weight and adverse inferences described in Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683 and Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB) did not justify treating the defendant as negligent merely because his record was deficient.
6. The claimant’s expert evidence was given little weight because the expert had proceeded on a mistaken factual basis, failed to engage with the pleaded mechanism of injury, and advanced new hypotheses without proper consideration of the evidence. The court’s concerns were reinforced by the earlier criticism recorded in Kneuss v BMI The Chiltern Hospital and Stuart Blagg.