The High Court has dismissed a negligence action brought by a man who suffered paralysis after spinal surgery, finding that he had not proved the surgeon was negligent or that post-operative mobilisation caused his decline.
In a judgment delivered on 11 April 2014, Mr Justice O’Neill considered the 2005 treatment of Richard O’Callaghan by orthopaedic surgeon Frank Dowling. O’Callaghan, who had severe kypho-scoliosis, underwent two operations at Blackrock Clinic in September 2005. The second operation aimed to correct the curvature of his spine.
During that procedure, O’Callaghan became paralysed in his lower limbs. Dowling removed the metalwork inserted in the spine, after which O’Callaghan quickly recovered neurological function. The intended correction was abandoned. His condition later deteriorated, and he became wheelchair-dependent. He began an unexpected recovery in 2006 and, by the time described in the judgment, had normal motor function with some minor sensory deficits.
The claim alleged negligence in proceeding without electronic spinal cord monitoring, known as SEP, and in the post-operative care, including the instruction to mobilise O’Callaghan “as able” and the arrangements made while Dowling was away. The plaintiff’s experts argued that his spine was unstable after surgery and that mobilisation contributed to further injury. The defence advanced reperfusion injury as an explanation for the later decline.
The judge found SEP use was a general and approved practice for this type of surgery in the United Kingdom in 2005. But he concluded that Dowling’s decision to use the wake-up test without SEP did not fall below the required standard of care. The court found SEP was limited and unlikely to have detected the injury before the wake-up test; any later detection would not have changed the outcome. The judge also found that the absence of SEP did not worsen the injury or deprive O’Callaghan of an opportunity to retain some correction.
The court rejected the claim that mobilisation caused the neurological decline. It found the spine was not pathologically unstable as alleged, and that the deterioration was already underway before mobilisation began. It also found no negligence in the “as able” instruction, the timing of stopping mobilisation, or Dowling’s designation of a locum while he was away.
The judge said the cause of the deterioration was not established: he accepted neither the plaintiff’s mobilisation theory nor the defence’s reperfusion explanation. Because O’Callaghan had not proved his account of causation on the balance of probabilities, and the court found no negligence in any event, the action was dismissed.