Healthcare Update: Approach to Care Deemed “Gold Standard” as Negligence Claim Rejected by High Court

The recent High Court case of McCormack v Timlin & Ors^[1] saw Mr McCormack, a retired butcher, suing a consultant orthopaedic surgeon in negligence regarding the treatment provided to him following spinal fusion surgery which he underwent in 2010.

Background

Mr McCormack had a long standing history of back pain dating back to 1998, although the pain was not considered to be significant. Over the following ten year period these back problems continued to deteriorate despite Mr McCormack undergoing various procedures and surgeries under the care of other consultants not named in these proceedings.

Mr McCormack first attended with Mr Timlin, Consultant Orthopaedic Surgeon in April 2009 with chronic low back pain and pain in his buttocks and legs. Mr McCormack underwent spinal fusion surgery under the care of Mr Timlin on 11 March 2010.

Mr McCormack claimed that he developed Cauda Equina Syndrome (CES) after the surgery on 11 March 2010 and that the CES was not recognised promptly. It was alleged that this led to Mr McCormack suffering neuropathic pain in both limbs, right sided foot drop, urinary dysfunction and depression.

CES is a condition that occurs when the bundle of nerves below the end of the spinal cord, known as the cauda equina, is damaged.

Mr McCormack’s submissions

It was alleged that post-surgery on 11 March 2010, Mr McCormack was suffering with compression of the caudal nerves and that he was exhibiting “red flag” signs of CES. It was claimed that Mr Timlin should have:

• Directed him to undergo an MRI scan prior to 16 March 2010, and
• Performed further surgery on 16 or 17 March 2010

Mr McCormack also claimed that Mr Timlin should have noted the signs of developing CES on the MRI scan of 16 March 2010.

Mr McCormack’s medical experts gave evidence that had he undergone further surgery on 16 or 17 March 2010, as opposed to the 19 March 2010 when he was ultimately returned to theatre, his present symptoms would have been less severe.

Mr Timlin’s submissions

While it was accepted that Mr McCormack did display a number of post-operative symptoms, Mr Timlin submitted that those symptoms were not the consequence of pressure on the cauda equina nerves. Mr Timlin asserted rather that the symptoms were typical symptoms following complex spinal surgery as a result of Mr McCormack’s scarring and nerve inflammation.

Mr Timlin gave evidence that he discussed the MRI images with colleagues and that it was agreed that Mr McCormack would be managed conservatively as his colleagues confirmed his view that the MRI images did not demonstrate any pressure on the cauda equina nerves.

Findings of fact

The Court concluded that subsequent to the index surgery on 10 March 2010, Mr McCormack was in fact suffering with developing CES as a result of pressure on the caudal nerves. In reaching this conclusion the Court noted that there was a complete lack of consensus between the medical experts as to the interpretation of the MRI scan carried out on 16 March 2010. The Court preferred the evidence advanced by the medical experts for Mr McCormack, ie that the developing CES would have been there to be interpreted from the MRI scan of 16 March 2010.

In addition, the Court accepted Mr McCormack’s experts’ evidence that had the revision surgery been performed on 16, 17 and possibly even 18 March 2010, the developing CES would have been addressed at an earlier stage thereby avoiding a considerable amount of the symptoms of which Mr McCormack now complains.

Negligent or gold standard?

Having established the factual background to the case Mr Justice Cross considered whether Mr Timlin was negligent in firstly not referring Mr McCormack for an MRI scan until 16 March 2010 and secondly in not performing further surgery until the 19 March 2010.

Despite the Court accepting, as a fact, that the developing CES was present on the MRI scan of 16 March 2010 Mr Justice Cross held that the approach taken by Mr Timlin in both the timing and interpretation of the MRI scan, which included consultation with colleagues, was not negligent.

The Court relied upon the principles in Dunne v National Maternity Hospital^[2] in determining that Mr Timlin had followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill. In fact, Mr Justice Cross described the approach taken by Mr Timlin as “gold standard”.

The conclusion of the Court in this case may seem unusual given that it accepted that the developing CES was present on the MRI scan of 16 March 2010, yet the Court did not find Mr Timlin negligent in reaching a different interpretation. This finding should be considered in the context of the Court’s view that the development of CES and its signs on the MRI scan was a “marginal thing” and, therefore, the actions of Mr Timlin could not be faulted.

Regarding the decision not to operate until 19 March 2010, the Court found that Mr Timlin had acted in accordance with a reasonable and approved practice and Mr McCormack had failed to demonstrate any inherent defect in that practice. The Court ultimately dismissed Mr McCormack’s claim.

Conclusion

In digesting this judgment healthcare practitioners should not become complacent in following a general and approved practice and are reminded of the words eloquently stated by fellow Consultant Surgeon, Eboo Versi^[3]:

“Gold standards are constantly challenged and superseded when appropriate.”

It is also important to note that Mr Timlin’s decision to seek the advice of his colleagues in what was clearly a complex case was a major influence on the Court. This is especially good practice in cauda equina cases, where the initial presenting symptoms are often subtle and the advice of experienced practitioners is of the utmost importance.

This article was contributed by Deirdre Ryan, Senior Associate and Katie McAuliffe, Senior Associate. For more information relating to the defence of medical negligence claims, contact our Healthcare & Medical Law team.

---

The content of this article is provided for information purposes only and does not constitute legal or other advice.