Healthcare - March 2010

Bad news for the District General?

Richard Jolly asks whether the courts have inadvertently given support to the Government’s desire to establish specialist centres within the NHS.

The terribly sad case of Laura May v Lancashire Teaching Hospitals NHS Trust reported in December 2009 has shone light upon the difficult decisions faced by all NHS trusts when deciding how to allocate their budgets, the considerations they should take into account and the courts’ support for a move towards more specialist clinical centres. 

It is a case where the NHS Trust decided not to invest in specialist equipment, but where, as a consequence the NHS has been left with a judgment against it with damages and costs ten times higher than the cost of the equipment the Trust decided it could not afford to provide to the claimant.

Facts
Laura was just 10 years old when she was diagnosed as suffering from a severe convex idiopathic thoracic scoliosis of her spine.  In February 2005 a consultant orthopaedic surgeon performed an operation to try to achieve some correction of the curvature to her spine and to prevent the progression of a significant deformity.  He used the mehdian method, operating from the posterior position with Laura lying on her front.  The operation involved improving the angle of the spine by the use of pedicle screws, hooks and rods.  The spine was manipulated to achieve correction.

Sadly, when the operation was over Laura was paraplegic.  She had lost the movement in her body and limbs below the level of the sixth thoracic vertebra, T6, in her spine.  The court was asked to consider whether the consultant carried out the operation negligently and whether such negligence caused Laura’s paraplegia.

The court heard evidence from expert consultant orthopaedic surgeons and consultant radiologists for both parties.  The experts could not agree on whether the operation was carried out negligently or on the cause of the paraplegia. 

The judge was in a very difficult position but after hearing all the evidence concluded that, on the balance of probabilities, the damage to Laura’s spinal cord was caused by a pedicle screw piercing the dura and compressing the spinal cord.  The judge went on to find that the consultant was negligent in that, having regard to the gravity of the consequences for the patient following a misplaced screw, he failed to use both lateral and anterior/posterior imaging during the placement of the pedicle screw.

The consultant admitted that he performed only five or six scoliosis operations a year.  He recognised that inserting pedicle screws was increasingly difficult.  He therefore used fluoroscopy whilst placing the pedicle screw.  As it was, the lateral imaging could only show the depth of the screw.  Anterior/posterior imaging would have shown the lateral position of the screw.  Whilst it was acknowledged that some surgeons do not use any imaging during the placement of screws this was where they were particularly skilled and experienced.  In this case, the consultant was not that experienced and therefore should have used anterior/posterior imaging in addition to lateral imaging.  The use of bi-plain imaging during the preparation and the placement of the pedicle screw would have been likely to have prevented its misplacement and the piercing of the dura and the resulting compression of the spinal cord.

Commentary
What is particularly interesting about this judgement is that the court went on to find that the Trust (not the consultant) was negligent for failing to provide Spinal Cord Monitoring (“SCM”).  The benefit of SCM is that it provides continuous assessment of the function of the spine so that if there is any compromise suspected or detected the surgeon can investigate.

The consultant admitted in cross examination that he had been asking for SCM equipment to be provided.  He alleged that he had written twice to his colleagues in neurophysiology asking for this. 

The evidence from the experts was that this Trust was probably the only unit in England which did not use spinal cord monitoring in 2005.  It meant that applying the Bolam test the judge was able to find that the defendant Trust fell below a reasonable standard of care in failing to provide SCM for use in the operation on the claimant.  If it had been provided, it was clear that the consultant would have used it. In those circumstances he would have discovered far sooner that the dura had been accidently pierced and taken action to prevent any permanent damage.

In her judgment the judge quoted from a paper produced by one of the defendant’s expert’s and felt that this was particularly relevant:

“The cost of monitoring is fully justified, as compared with the financial implications of even a single case of post-operative paraplegia, to say nothing of the human cost to the patient and family”.

This quote sums up the situation perfectly.  It is a dilemma faced by NHS trusts on a daily basis.  In a perfect world every NHS trust would have the best and the most up to date equipment.  Clearly, that is not possible.  In this case the Trust’s decision not to purchase any SCM equipment had devastating consequences for Laura and it is clear from the judgment that this case badly affected the clinicians involved.

It is beyond dispute that money in the NHS is only going to get tighter.  We know that trusts will be expected to achieve 10-15% savings in real terms over the next three years or so.  The government insists that these savings should not be at the expense of the quality or the patient’s experience. It seems inevitable that more and more trusts will be faced with the type of decision faced by this Trust. The money coming into the NHS can only be spread so far. It seems inevitable that in such circumstances some patients will suffer adverse consequences that might otherwise have been avoided.  What this case demonstrates is that a lack of resources is not necessarily a defence. In the future trusts may have to justify their decisions on how they use their limited resources in court.

Be aware though that whilst the court may have sympathy for the NHS’s predicament, it will not absolve the NHS of any responsibility should an adverse outcome result from a resources decision. On the contrary, trusts will have to re-evaluate whether they are exposing patients to unnecessary risks by undertaking certain procedures using only the equipment available to them in circumstances where there might be another local trust better equipped to perform the surgery. Although consent was not raised as an issue by Laura’s legal team it is arguable that in the future, when obtaining consent to a particular procedure, a treating consultant will have to point out to patients that a neighbouring trust is better equipped to perform a particular procedure, since surgery there may be a less risky and so a better alternative to the one the patient is faced with at the consultant’s trust.

Many district general hospitals do presently provide a wide range of clinical procedures to patients, but in many cases there is just not the volume of patients with complex needs to justify specialist equipment being made available in such centres and thus to make this viable or as safe as possible for patients. Patients are becoming increasingly frustrated about the services offered, with a service they believe to be too often centred on the needs of the providers rather than those of the patients. It is therefore believed that giving patients choices, through reforms to encourage plurality of provision, will create a genuine level playing field between competing providers and will build a more specialised and more responsive healthcare system. The impact of these reforms has yet to be seen; indeed the NHS constitution only came into effect on January 19 this year. Under the constitution all NHS organisations will be legally obliged to take account of the rights and pledges set out in the NHS Constitution. Among other things, the NHS Constitution gives patients the legal rights to: access NHS services; choose where they receive their care; be treated with dignity and respect; and receive drugs and treatments approved by the National Institute for Clinical Excellence.

What is certain is that patients’ aspirations and expectations are rising, and as a result the traditional ways of delivering NHS care are beginning to be challenged. This judgment may inadvertently have given fresh impetus to the government’s desire for specialist centres.  It raises the possibility of district general hospitals having to decline to offer certain types of surgery for fear of litigation.  If so, do district general hospitals have a long term future in their present guise?

Richard Jolly, Partner
Weightmans LLP