Errors by a surgeon cause a rare spinal injury

I recently settled a rather unusual spinal injury clinical negligence claim. For approximately 2 years following the development of back pain whilst moving a heavy load, my client, who was the Claimant, suffered with left-sided sciatica due to L5/S1 intervertebral disc degenerative disease and disc herniation, with left S1 nerve root compression and resulting radiculopathy, confirmed by MRI scan. Initial conservative management was successful but, latterly, even facet joint injection failed to alleviate the sciatica and the giving way of the Claimant’s leg.

The Claimant’s spinal surgeon advised spinal fusion. However, following a recommendation from his work occupational health doctor, the Claimant attended an outpatient appointment on a private basis with the Defendant spinal surgeon for a second opinion. The surgeon recommended a left L5/S1 Transforaminal Endoscopic Lumbar Decompression and Foraminoplasty (TELDF), with fusion to be held in reserve. There was also consideration of Gelstix therapy at the L3/4 and L4/5 levels at some point in the future, due to the apparent presence of High Intensity Zones (HIZ) on the scan imaging at these two levels, suggestive of early degeneration. Gelstix is a hydrogel nuclear augmentation device, made of an inert absorbent material designed to mimic the conditions of a healthy intervertebral disc by swelling on implantation into the nucleus pulposus, bringing degenerative discs both volume and hydration. At the time of this case, it was a relatively new procedure in spinal surgery.

The surgery that took place consisted of left L3/4, L4/5 and L5/S1 Spinal/Foraminal Probing and Discography, L3/4 and L4/5 Fehrfix (not, in fact, Gelstix) implants and L5/S1 TELDF, Endoscopic Intradiscal Discectomy and Laser Disc Decompression. Additionally, hyalase was injected intrathecally. Fehrfix is also a hydrogel implant, although less information on it appears to be available than with Gelstix. Hyalase (hyaluronidase) is an enzyme which breaks down hyaluronic acid, which is part of the extracellular matrix (the tissues between cells), and it aids tissue permeability. It’s use at the time was also relatively new in spinal surgery.

The Claimant was only consented for Gelstix (not Fehrfix) and only about 10-15 minutes before the surgery; he was not aware Fehrfix would be used instead of Gelstix, and he also was not consented at all for the intradiscal hyalase.

The surgery itself proceeded uneventfully, however.

Nevertheless, soon after the surgery, the Claimant developed ongoing severe back pain and spasms which repeatedly flared up, necessitating treatment variously with pregabalin, tramadol, morphine and clonazepam. The Defendant did little to aid the Claimant during this time, save for advising some off-licence medication and that the pain would settle with time.

After some months with the Claimant’s symptoms deteriorating, an MRI scan performed by his local NHS hospital confirmed grossly abnormal appearances of the L3/4 and L4/5 intervertebral discs and the L4 and L5 vertebral bodies, consistent with inflammatory spondylodiscitis. The Claimant was admitted to hospital and underwent a 3-month course of antibiotics (6 weeks intravenous then 6 weeks oral) in case the inflammation was infective in origin. However, no organism was ever cultured and it was concluded the Claimant had had an inflammatory but non-infective reaction to the Fehrfix implants. No surgical intervention was necessary and the discs were allowed to fuse naturally. Review of the pre-operative MRI by the treating orthopaedic surgeon also concluded that the now severely damaged L3/4 and L4/5 discs had been normal prior to the reaction to the Fehrfix.

As a result of the damage to the intervertebral discs and the vertebral bodies between L3 and S1 from the inflammatory discitis, the Claimant suffered with persistent, severe and debilitating back and leg pain. The severity of the pain resulted initially in chronic opioid use and then, having successfully weaned off opioids, cannabinoid usage. The Claimant also initially suffered with bowel, bladder and sexual dysfunction, most likely due to the medication, and he became physically deconditioned. He unsurprisingly developed a psychological injury in the form of a marked Adjustment Disorder. The physical and psychological injuries resulted in a very significant adverse impact on the Claimant’s recreational and work activities: he had had a successful, well paid job pre-injury which required international travel but he was no longer able to continue his work post-injury and was placed on long-term and indefinite sick leave, with the likelihood that he would never be able to work to anything like the same level again.

Liability in the claim was investigated with opinions obtained from experts in orthopaedic spinal surgery, neurosurgery and neuroradiology, all of whom were supportive of the claim. Significant concern was in particular expressed at the use of experimental procedures. Additionally, the experts – in particular the neuroradiologist – were critical of the Defendant’s conclusion that there were HIZ on the radiology, which was a straightforward error. Ultimately, the primary criticism was that it had been entirely inappropriate to operate on the two normal L3/4 and L4/5 discs, and that this was negligent. A Letter of Claim was served on this basis in accordance with the Clinical Negligence Pre-Action Protocol.

Rather than serve a formal Letter of Response, the Defendant indicated that he had no intention of defending the claim and proposed early settlement, making a small interim payment. However, it soon became apparent that causation and nature and extent of injury were significantly in dispute. In what ended up being a protracted Pre-Action Protocol period whilst the Claimant then investigated causation and quantum and pushed the Defendant surgeon to clarify his position, eventually a formal admission of breach of duty was forthcoming: in that, during the surgery, the surgeon should not have operated on the L3/4 and L4/5 intervertebral discs and he should not have instilled hyalase intradiscally at L5/S1.

The Claimant claimed that, but for these admitted breaches, he would only have suffered with mild low-grade back pain, which he could have managed with simple lifestyle measures and exercise, and his capacity to manage his pre-existing mild low-grade back pain at L5/S1 would not have been permanently and significantly compromised.

The Defendant surgeon accepted that the Claimant should not have suffered a severe inflammatory non-infective discitis with resulting permanent structural damage to the discs at L3/4 and L4/5. However, he declined to admit that the severity of the Claimant’s symptoms was due the admitted breaches and required him to prove them. This necessitated a detailed and thorough investigation of the injuries, their functional effect and the impact upon the Claimant’s daily activities and work, with opinions obtained from experts in neurosurgery, pain management, psychiatry, care and physiotherapy, with attendant close monitoring and review of the Claimant as he weaned himself off opiates and on to cannabinoids, and as he reached a physical and psychological status quo to enable the claim to be accurately quantified.

A Joint Settlement Meeting (JSM) was arranged for after the exchange of expert evidence and service of each parties’ respective Schedules of Loss and Damage quantifying the claim. The main issues at the JSM were the Claimant’s future care and therapy needs and the extent of his income loss. Due to delays in the timetable, the JSM took place only a few weeks before trial and before expert joint statements had been produced. However, after successful negotiations, the claim settled at the JSM for a little over £770,000, with which my client was delighted.

The claim was particularly unusual because it involved the insertion of two products widely considered relatively novel or experimental – Fehrfix and intradiscal hyalase – neither of which had been extensively trialled and, with respect to both products, the Claimant asserted he had not been appropriately consented prior to the surgery. It was highly likely, and it was essentially accepted, that it was the Fehrfix which had caused the severe inflammatory discitis which had ultimately caused the lion’s share of the Claimant’s problems. Notwithstanding the use of products which had not been properly tested and trialled, the main criticism in the case, which was admitted, was the surgeon operating on two normal intervertebral discs in the first place: this was in truth a very basic error.