Henry v Oxford University Hospitals NHS Foundation Trust

In a clinical negligence claim, the claimant must prove that the treatment, investigation or omission fell below the standard of the ordinarily competent practitioner. A practice must also be respectable, responsible and reasonable, with a logical basis. The court rejected allegations that a minimally misplaced spinal pedicle screw caused continuing symptoms. Neither breach of duty nor causation was established.

The claimant brought a personal injury claim arising from posterior instrumented spinal fusion surgery in July 2010. He alleged that a misplaced L5 pedicle screw was not recognised during surgery, shortly afterwards or on later investigations, and that it caused continuing left leg pain until its removal in 2015.

The defendant denied breach, causation and loss. The issues included the use of imaging, the claimant’s post-operative symptoms, the screw’s relationship to the L5 nerve root and whether it caused the claimant’s pain.

1. Judgment for the defendant. The claim failed on breach of duty and causation.
2. The court applied the standard in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: the claimant had to establish a failure to attain the standard of the ordinarily skilled practitioner exercising the relevant skill.
3. Under Bolitho v Hackney HA [1998] AC 232, the practice relied upon had to be respectable, responsible and reasonable and have a logical basis.
4. The L5 screw was minimally misplaced, but the intrusion was not substantial and such misplacements were common. There was no breach of duty. Anterior-posterior imaging and a radiolucent table had been used.
5. The claimant did not develop new radicular leg pain or a neurological deficit immediately after surgery. An immediate CT scan was therefore unnecessary.
6. The screw was not touching, compressing or deviating the nerve root and was not the cause of the claimant’s symptoms. The temporary improvement after removal did not establish causation because the pain returned within weeks.