Lesforis v Tolias

Under the Bolam test, a disparate range of clinical practice does not prevent a court finding that a particular practice fell below the reasonable standard. In assessing prophylactic anticoagulation after spinal surgery, factors supporting the use of chemoprophylaxis do not necessarily justify earlier administration. The timing must be assessed by reference to the risks and benefits and the practice of a reasonable body of relevant specialists. A trial judge is entitled to draw inferences from oral evidence and resolve apparent inconsistencies. An appellate court should not interfere where those findings were open on the evidence.

Mrs Lesforis suffered serious permanent neurological injury after spinal surgery performed by Mr Tolias. She alleged that he negligently prescribed low molecular weight heparin approximately three hours after surgery.

Martin Spencer J held after trial that prescribing chemoprophylaxis routinely within six hours was negligent and causative of the injury. The defendant appealed on the sole ground that the judge had failed to address whether three patient-specific risk factors justified administration within three hours. The appeal concerned whether those factors affected the timing of prophylaxis and whether the trial judge had properly evaluated the expert evidence.

Appeal dismissed. Hamblen LJ gave the judgment, with which Patten and Holroyde LJJ agreed.

1. The trial judge had addressed the three relevant risk factors: the claimant was overweight, was expected to remain immobile for 48 hours, and had undergone anaesthesia and surgery lasting more than 90 minutes. The judge found that those factors justified postoperative chemoprophylaxis, but did not justify earlier administration. That finding was supported by Mr Leach’s evidence and was open to the judge on the evidence.
2. The absence of consensus about the precise timing of prophylaxis did not mean that there was no consensus about timing which was unsafe. The judge was entitled to find that no reasonable body of spinal surgeons would have routinely administered chemoprophylaxis within six hours of spinal surgery in 2013. Early administration required specific justification in the particular circumstances, after weighing the competing risks.
3. Mr Leach had expressly rejected the suggestion that the three risk factors supported earlier administration. His evidence distinguished between factors supporting the use of chemoprophylaxis and factors affecting its timing. The judge was entitled to prefer that evidence over Mr Cadoux-Hudson’s contrary evidence, which was advanced only in re-examination and did not establish the practice of a reasonable body of surgeons.
4. It was not material that the judge did not separately answer the proposed question whether the particular risk factors justified administration within three hours. On the findings made, those factors did not justify departure from the safe timing practice, so the question did not arise independently.
5. The Court of Appeal would not substitute its assessment for the trial judge’s evaluation of oral evidence or interfere with inferences reasonably drawn from it. The limited permission to appeal also left the appellant unable to challenge other findings or the rejection of the contrary expert evidence. An application to adduce further evidence was not pursued and was irrelevant to the appeal.

1. Court of Appeal (Civil Division): dismissed the appeal against the liability judgment.
2. Queen’s Bench Division: Martin Spencer J held that prescribing chemoprophylaxis within six hours of spinal surgery was negligent and causative of the claimant’s injury: [2018] EWHC 1225 (QB).