Hazhar Shally v Imperial College Healthcare NHS Trust

In clinical negligence claims, a claimant must establish that the treatment fell outside a practice accepted as proper by a responsible body of skilled professionals. The court must assess the expert opinion itself and may reject it where it cannot withstand logical analysis, particularly concerning comparative risks and benefits. A difference of professional opinion is insufficient where the defendant’s approach is reasonably and logically supported.

For complex thoracic spinal surgery, a transpedicular and transdural approach may be acceptable where the disc is firmly adherent to the dura, the anatomy provides a suitable surgical corridor, and the approach is supported by appropriate expert practice. Gentle mobilisation of the spinal cord through the dentate ligaments is not necessarily negligent, although instrumental retraction is contraindicated. Injury arising from the inherent risks of a reasonable procedure does not establish breach.

The claimant suffered incomplete paraplegia after surgery for a giant, largely calcified T10/11 thoracic disc prolapse. He alleged that the defendant NHS Trust was negligent in abandoning a planned costotransversectomy, changing to a posterior transpedicular and transdural approach, and manipulating or mobilising the spinal cord.

The court considered the pre-operative decision-making, the intraoperative change of approach, the use of spinal cord mobilisation, and causation. It also considered whether the claimant’s intended approach should have been discussed with another consultant and whether a second opinion was required during surgery.

1. Claim dismissed. The defendant did not breach the duty of care in relation to any pleaded or unpleaded criticism.
2. The court applied the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, as qualified by Bolitho v City and Hackney HA [1997] UKHL 46; [1988] AC 232. A court must decide the standard of care for itself, but should attach substantial weight to appropriate expert opinion. It may reject such opinion only where it cannot withstand logical analysis. In risk-and-benefit cases, the experts must have addressed the comparative risks and benefits and reached a defensible conclusion.
3. A costotransversectomy was a reasonable initial approach. Given the disc’s firm adherence to the dura, it was reasonable to decide intraoperatively that completing the rib removal would provide little additional benefit. The transpedicular and transdural approach was supported by a responsible, competent and respectable body of neurosurgical opinion, training experience and literature. The disc’s right-sided eccentricity and displacement of the cord made a right-sided approach reasonable.
4. The court distinguished retraction from gentle mobilisation. The operation note and evidence established that no instrument was used to retract the cord. Mobilisation by gentle rotation through divided dentate ligaments was an accepted standard technique and was an inherent part of the transdural approach. The claimant failed to prove that the mobilisation was excessive or negligently performed.
5. The court found that a pre-operative discussion with another consultant should have occurred for this rare, high-risk and complex pathology. However, on the facts, it was more likely than not that such discussion had occurred. Any failure to consult would not have caused the injury, because the proposed approach was reasonable and a different recommendation would not probably have altered the surgery.
6. The claimant’s spinal injury was sustained during surgery, but the evidence did not establish that it resulted from negligent conduct. The likely causes included a sharp disc fragment, the reasonable attempt to remove it, or other inherent risks of a procedure carrying an accepted 5–10% risk of paraplegia.