ZZZ v. Yeovil District Hospital NHS Foundation Trust
A young woman (referred to as XXX) was a rear seat passenger in a car which was involved in a road traffic collision at 09.17 on 27 October 2011. She was wearing a lap seat belt but nevertheless suffered serious spinal injuries. Insurers for the negligent motorist (ZZZ) settled her claim with a lump sum of £3 million, plus substantial ongoing periodical payments for care and case management. They started contribution proceedings against the trust, alleging that insufficient precautions were taken in the emergency department.
This step was taken because shortly after arriving in hospital at roughly 10.15, having been transported from the collision site by ambulance, XXX was able to assist a nurse in removing her trousers and to push her feet against the nurse’s hand. However, by 11.15 she could no longer move her legs. At 15.00 a scan revealed a fracture of the lower thoracic spine and severe compromise of the spinal canal and cord. She was referred to a tertiary centre for urgent surgery, but remains seriously disabled.
Ambulance staff, on arrival at the hospital, did not suggest to trust clinicians that they had any concerns about the patient’s neck or back and XXX was not on a spinal board. On admission, normal power in both legs was recorded. The patient was placed flat on a trolley on arrival and trust witnesses denied that she ever sat up, as had been alleged. When a doctor needed to examine her back he “log-rolled” her so as to keep her spine in proper alignment.
Various expert witnesses gave evidence. The neuro-radiologists agreed that the fracture dislocation probably occurred in the collision. Four experts concurred that XXX had suffered a flexion injury leading to a capsular tear which permitted part of the T12 vertebra to move through and over-ride the lower part of T11, causing major dislocation of the spine. T12 also became lodged with more than 50% forward movement over the lower vertebra L1. This was an unstable fracture of the most severe kind.
The judge accepted that some spinal function had been retained immediately after the collision. Trust staff were at fault for not making a “trauma call”, under the local protocol, because it had been reported that the combined speed of the vehicles had been 60mph (that in fact turned out to be an over-estimate). Also, there was a breach of duty in failing to implement a full range of spinal precautions to ensure, so far as possible, no movement to the spine.
However, Mr. Justice Garnham held that these breaches did not cause or contribute to the patient’s injury. There was no evidence to suggest that XXX’s spine was moved to any significant extent during her stay at Yeovil. Rather, he accepted the evidence of two neuro-surgical experts who explained that following initial damage to the spine, swelling of the cord can occur which restricts its supply of oxygen. This results in white cells and other inflammatory material appearing inside the cord. In time, those materials release chemicals which set up secondary damage. This has been recognised since the 1970s.
The initial insult to the cord had been so severe that complete spinal cord injury and subsequent paralysis were inevitable. Medical science could explain why paralysis was not instantaneous. It was therefore wrong to view the trauma as a single event. It continued after the collision because the spine was locked in a contorted and extended position. Chemical changes in the spine continued after the initial impact. Consequently, whilst two breaches of duty had occurred those had no causative effect. The true cause of the patient’s paralysis was damage inflicted in the collision.
Comment
NHS Resolution occasionally sees attempts by insurers to recover monies they have expended in settling a claim against their policyholder. Each one requires careful investigation, not least because there is a need to determine what consequences flowed from the original collision and what (if any) were caused by the alleged clinical negligence. In this case the observed facts appeared to support insurers’ view – namely that XXX had movement below the level of her injury on arrival at hospital. However, expert evidence demonstrated that appearances were deceptive because changes to the spine were continuing, after the collision, which inevitably led to paralysis. Although there were two breaches of duty on the part of clinicians, these had no impact on the eventual outcome.
