Lesforis v Tolias

In assessing clinical negligence, the court must consider the risks and benefits of the treatment, the patient’s individual circumstances and whether the defendant’s practice was supported by a reasonable body of professional opinion. A routine practice is not justified merely because professional guidance is silent or evidence is limited. Early anticoagulant prophylaxis after major spinal surgery was negligent where it was administered routinely within six hours without a specific risk assessment. The resulting haematoma materially caused the neurological injury. However, a consultant’s considered decision to delay re-operation in an unusual and confusing clinical situation was not negligent where it was supported by professional advice and fell within usual practice.

Mrs Yvonne Lesforis developed permanent neurological impairment after lumbar spinal surgery performed by Mr Christos Tolias. She alleged that he negligently administered low molecular weight heparin too soon after surgery, failed to obtain emergency MRI imaging and delayed re-operation after neurological deterioration.

The claim was tried at first instance on breach of duty and causation. The central issues were whether administration of anticoagulant prophylaxis approximately three hours after surgery breached the applicable standard, whether the resulting haematoma caused the injury, and whether the subsequent diagnostic and operative decisions were negligent.

1. Early chemoprophylaxis. The timing of prophylaxis depended on the patient’s risk of venous thromboembolism and the bleeding risk of the surgery. Although guidance in force in 2013 was silent and medical literature was limited, no reasonable body of spinal surgeons routinely administered chemoprophylaxis within six hours of major spinal surgery. Such early treatment required specific justification after weighing the individual risks and benefits. Mr Tolias’ routine practice of prescribing it at that time for all cranial and spinal patients failed to undertake that assessment and was outside normal practice. It therefore breached the duty of care.
2. Causation. The early administration probably caused or materially contributed to the formation and size of the epidural haematoma. The haematoma compressed the dura and materially contributed to the neurological deficit. Breach and causation were therefore established on this allegation.
3. Delay in re-operation. The decision to administer steroids and observe initially, rather than re-operate immediately, was made in a difficult and unusual clinical situation. The CT findings, the apparent level and pattern of the neurological deficit, the absence of severe pain and the advice received all supported that approach. Applying the principles in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and Hughes v Waltham Forest Health Authority [1991] WL 839495, the decision was not so outside usual practice as to be negligent.
4. MRI. Emergency MRI would probably have been desirable, and the lack of out-of-hours facilities was a matter of concern. However, the absence of such facilities was not alleged to be a breach by Mr Tolias. In the circumstances, he acted reasonably in relying on the CT scan and neuroradiological advice.
5. Judgment was entered for the Claimant on the early chemoprophylaxis allegation. The alternative allegations concerning delay and MRI were dismissed.

First-instance judgment. No earlier decision or appeal is stated in the judgment.