Hosseini v Central Manchester University & Anor

In clinical negligence claims concerning high-risk spinal surgery, proceeding without useful neurophysiological monitoring is not automatically negligent. The question is whether the surgeon’s decision was within a range of recognised and responsible practice, assessed in the circumstances of the individual patient.

A wake-up test is likewise a matter of professional judgment where the patient’s ability to co-operate and the reliability of the test are in issue. A decision to proceed may be justified by a proper assessment of risks and benefits, including the serious consequences of leaving the condition untreated.

The claimant, who had cerebral palsy and neuromuscular scoliosis, suffered permanent lower paralysis following corrective spinal surgery at the defendant hospital. She alleged failures in spinal cord monitoring, failure to use a wake-up test, and failure to abandon the operation when monitoring produced no useful information.

The court also considered whether the injury occurred during surgery or post-operatively, and assessed the damages that would have been awarded had liability been established.

1. Monitoring. The clinical neurophysiologists had appreciated that the monitoring produced no useful information and had conveyed that fact to the surgeon. The surgeon therefore proceeded in that knowledge. The monitoring claim failed.

2. Wake-up test. Whether a wake-up test was feasible and reliable was a matter for the individual surgeon’s professional judgment. The surgeon had assessed the claimant before surgery and reasonably concluded that she could not reliably co-operate in the operating theatre. His decision not to use the test was responsible and non-negligent.

3. Proceeding with surgery. The relevant question was whether proceeding without useful monitoring or a feasible wake-up test was outside the range of recognised and responsible practice. The court accepted that the surgeon had weighed the risks and benefits, including the likely deterioration in the claimant’s quality of life without corrective surgery. The evidence of the surgeon and another specialist established a responsible body of practitioners who would proceed in such circumstances. The abandonment claim therefore failed.

4. Timing of injury. Although unnecessary to the result, the court concluded that the cauda equina damage probably occurred post-operatively. The surgeon had probably carried out a neurological check and distinguished purposive from reflex movement. The court also accepted that, if negligence in proceeding had been established, post-operative paralysis would not have been too remote from the relevant duty: see Banque Bruxelles SA v Eagle Star v York Montague [1997] AC 191 at 213F.

5. Quantum. Had liability been established, general damages would have been assessed at £90,000. The additional bladder and bowel care was qualitatively different from care that would otherwise have been required, so the full cost of that care would have been recoverable. The claim was dismissed.

First-instance trial on liability and quantum in the High Court (Queen’s Bench Division). No appellate history was stated in the judgment.