Wrong equipment used in back operation

Mrs D had suffered from back problems and agreed to undergo a spinal operation in order to regain the degree of mobility and flexibility she enjoyed beforehand. This was particularly necessary to her as she had young children and being active was important.

She agreed to have a discectomy (an operation to remove the section of disc that is pressing on a nerve or on the spinal cord) or replace it altogether, whichever was more likely to achieve the outcome she wanted.  However, during the course of the operation, the surgeon, finding himself without the right equipment for a discectomy, had to perform a fusion operation instead.

Failure to provide the correct surgical equipment

Ms D had agreed that the surgeon could carry out a fusion operation if he discovered that, once the operation was underway, a discectomy operation was not appropriate. However, she did not agree to a fusion operation as an alternative to a discectomy because the correct equipment was missing. To make matters even worse, not only did the surgeon not have the correct equipment for a discectomy, neither did he have the right tools for an adequate fusion procedure. As a result, the surgeon was forced to use Surgicel (a cellulose material used as a coagulant) in order to try and stabilise the joint.

The claim

Ms D was in considerable pain following the operation and, understandably upset with the care she had received, came to us for advice. On investigation, it was clear to us that she had a medical negligence claim against the private hospital where the operation had taken place: not only had it failed to provide the surgeon with appropriate equipment to carry out the discectomy operation but it also failed to provide the right equipment to achieve a good fusion operation.  We also claimed that, under the circumstances, the surgeon should not have gone ahead with the operation. 

Expert witnesses

Our expert witness supported our client’s case on the basis that the hospital’s negligence in failing to provide the correct equipment directly resulted in the surgeon’s actions which caused the pain and discomfort she suffered. However, the expert witness who appeared on behalf of the hospital agreed with the surgeon’s view that our client would still be in pain, irrespective of which operation he carried out, as her back was in such a poor condition. Unswayed by this opinion, we remained convinced of the merits of our client’s case and issued court proceedings.

Court proceedings

The hospital finally admitted a breach of duty towards our client but would not admit that their negligence contributed to our client’s pain. Following a case management conference, the matter was listed for a split trial (whereby the decision about who is to blame and how much one party owes the other is dealt with separately) but, in the end, we succeeded in negotiating an appropriate settlement.

A complicated settlement

Working out the settlement was complicated, not least as the defendant was adamant that Ms D would have had the same outcome irrespective of whether she underwent a discectomy or a fusion operation. In addition, the nature of our client’s injury meant that she could not work the number of hours she had done previously so her husband had had to give up work to look after her and the children. Therefore we had to work out general, special and future damages to cover past, present and future losses relating to care and loss of wages which we did with information provided by the expert witness advising on the case. In the event, we were able to negotiate a six figure sum for our client with which she was delighted. 

About the author

Jeanette Whyman Partner

Jeanette is head of the medical negligence team. Having worked previously for Hospital Trusts, Jeanette has extensive knowledge of hospital practices and procedures. This means that she is able to assess a case speedily and to anticipate the other parties' position – this enables her to put forward the best possible case on behalf of her client.