Damages of £1.44 million secured for client with spinal cord injury following trial win

We recently secured judgment at trial for our client, who suffered a permanent neurological injury following penetration of her spinal cord by an anaesthetic needle.

Our client was diagnosed with a colonic tumour in May 2018, and advised to undergo surgery to resect the tumour. She attended a pre-operative clinic a week before the surgery and the operation took place on 2 July 2018 at St Mary’s Hospital, Isle of Wight. 

She was advised to have an epidural to provide post-operative pain relief. Multiple unsuccessful attempts were made by the anaesthetist to site an epidural: three whilst our client was awake prior to general anaesthesia, and seven ‘asleep’ attempts whilst she was unconscious. Our client found the first three attempts whilst she was awake extremely painful and became very distressed. Her understanding was that the anaesthetist would abandon attempts to site the epidural and would put her under general anaesthetic. However, once our client was put to sleep, the anaesthetist continued with three more attempts. When she was still unsuccessful in correctly siting the needle, she asked for help from a colleague who made four more attempts – all unsuccessful. 

When our client regained consciousness after surgery, she became aware of an excruciating shooting pain in her right knee, along with altered sensation. An initial MRI scan was reported as showing no cause of her symptoms, though it was subsequently re-reviewed and an epidural haematoma was suspected. This was confirmed on repeat MRI, which also noted post-traumatic changes involving the spinal cord at T11 to T12.

Our client’s case was that making ten attempts at siting the epidural needle was excessive and put her at unnecessary risk of injury. Furthermore, she had not given consent for any ‘asleep’ attempts to be made. It was not until several days after surgery that she was informed further ‘asleep’ attempts had been made to site the epidural, though at this point she was not told the total number of attempts, nor that another anaesthetist had been involved.

Our client now suffers from significant pain and pins and needles down the whole of her right leg below the knee. Her mobility has been affected and she has had to move to single-storey accommodation. Her right leg will give way on occasion and to avoid falls she walks with a stick. She has difficulty sleeping because of the pain. Before her injury, our client worked as a bar maid at a hotel. She has not been able to return to any form of work. Her neurological injury has affected her bladder function, and she has episodes of urinary incontinence. She has lost all sexual sensation, which has affected her relationships with partners. 

Once instructed, we obtained supportive expert evidence on the issues of breach of duty and causation from experts in anaesthesia, neurology, and neuroradiology, before sending a letter of claim to the defendant trust. The trust denied liability in its response, and court proceedings were commenced. To investigate our client’s condition and prognosis, as well as the value of her claim, we obtained reports in the fields of psychiatry, urology, pain management, accommodation, and care. The defendant continued to deny liability in its defence. It was agreed, however, that one of the epidural needle passes had gone straight through our client’s spinal cord.

A four-day liability trial was heard at the Royal Courts of Justice before Mr Justice Ritchie, damages having been agreed in advance of the trial. John de Bono KC was instructed to represent the claimant.

Mr Justice Ritchie was critical of the consenting process, finding that no alternative forms of pain relief had been offered to the claimant at the pre-operative assessment or on the day of surgery, which he determined was a breach of duty. He found: ‘The claimant gave verbal consent which was not ‘informed consent’ and so was invalid because she was not informed of the relative risks and benefits of other options including patient controlled analgesia.’

He was particularly critical of the failure to obtain consent to making further attempts at siting the epidural once our client was under general anaesthetic, and found that this was a breach of duty. He held: ‘Doctor Rice then became determined to put the claimant to sleep and to continue [with unconscious epidural attempts], however she failed to explain to the claimant that she would continue with unconscious attempts and she failed to set out the alternatives (specifically patient controlled analgesia) so that the claimant could choose. Her professional responsibility at that stage was to gain the claimant’s informed consent to the way forwards but she did not do so.  As a result, she did not make any notes on the Anaesthetic Record of informing the claimant of her post-operative pain relief options or of any verbal consent to more attempted epidurals. This was a further breach of her professional consenting and note taking obligations.’

The judge accepted our client’s evidence, which was that having already endured three failed attempts at siting the epidural, she would not have agreed to further ‘asleep’ attempts had she been asked. The case was therefore won on the basis of a lack of informed consent.

A Part 36 offer on liability made before the trial secured an additional £75,000 in damages for the claimant, as well as an uplift on interest amounting to £65,000. Our client therefore received a total of £1.44 million in damages.

Rosie Nelson, senior associate in the clinical negligence team, commented: “This case highlights the vital importance of ensuring that a patient is given the opportunity to give valid informed consent, and that this consent is accurately recorded. Our client has been through a huge ordeal, though I hope that, now she has managed to achieve some closure, she can begin to move forwards with her life.”

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