LORD JUSTICE LEGGATT: I shall ask Lord Justice Otton to give the first judgment.
LORD JUSTICE OTTON: This is an Appeal from a decision of His Honour Judge Byrt QC, sitting as a Deputy High Court Judge on ll June 1993, whereby he dismissed the Plaintiff's action for damages by finding in favour of the First and Second Defendants.
The Plaintiff, Mrs Patricia De Freitas, alleged that she suffered personal injury, loss and damage as a result of the negligence of the first defendant, John O'Brien, a consultant orthopaedic surgeon, and the second defendant, Raynier Campbell-Connolly, a consultant neuro-surgeon.
For the last 14 years the plaintiff has suffered great pain and discomfort in her back. In October 1981 when she was only 37 years old she started to have pain in her neck. This condition lead to manipulation, traction and surgery. She did not make a good recovery, but worse was to come. In 1986 she suffered severe low back pain. Physiotherapy gave some relief but a consultant orthopaedic surgeon dismissed an acute disc prolapse. In December 1987 she was seized with sudden and savage pain in her back and left buttock. Her consultant referred her to a colleague who, in March 1988, diagnosed an annular tear in the intervertebral disc at L3/4 level. An MRI scan and discogram were taken. These did not confirm this diagnosis but the discogram showed early disc degeneration at L 4/5 level. The second consultant decided to refer the plaintiff to Mr John O'Brien who was well known within the medical circles as an experienced spinal surgeon.
Mr O'Brien had trained as a Doctor in Australia and then turned to orthopaedic surgery in London, Edinburgh and Hong Kong. From 1976 - 1985 he was the Director of the Department for Spinal Disorders, Robert Jones & Agnes Hunt Orthopaedic Hospital, Oswestry. This establishment is of world wide repute as a centre of clinical excellence in the diagnosis and treatment of spinal disorders. Mr O'Brien claims to have been the world's first full-time spinal surgeon; he has lectured in many parts of the world on his specialisation; he has an impressive list of learned publications to his name.
The plaintiff saw the first defendant for the first time on 12 July 1988 at his rooms in Harley Street. She was stretcher-borne and in intense pain. She was immediately admitted to the London Clinic. Two days later the first defendant performed an anterior lumbar fusion. She was discharged home on 7 August. It was soon apparent that the surgery had not been successful. Nine days later she was re-admitted with pain in the right buttock and thigh and restricted movement in the right leg straight raising. She did not improve.
On 24 August a radiculogram showed "no convincing evidence of nerve root compression". Two days later, on 26 August, the first defendant performed a second operation to alleviate what he suspected as nerve root compression. It is this second operation upon which this action and appeal are concerned. This surgery was also unsuccessful. Subsequent investigations revealed deep wound infection and leakage of cerebro-spinal fluid. At this point Mr Campbell-Connolly was brought in to deal with the cerebro-spinal fluid.
The plaintiff was transferred to the intensive care unit at University College Hospital and from there to the Hospital for Nervous Diseases at Maida Vale for surgery. Mr Campbell-Connolly was also made second defendant in this action but the learned judge found in his favour and that matter is not before this court.
The operation in Maida Vale was partially successful. The problem of the leak of CSF was corrected but the plaintiff continues to suffer from chronic arachnoiditis, an inflammation of one of the layers of the membranes covering the spinal cord. She has had the most devastating experience with grievous pain, anxiety and suffering. She is left with a permanent disability accompanied by crippling pain which has left her virtually confined to bed. No-one reading her case notes could fail to have the deepest sympathy for her.
In August 1990 the plaintiff commenced proceedings against the first defendant alone alleging negligent mismanagement of the CSF leak. However, l8 months later in October 1992, by amendment, she alleged that Mr O'Brien was negligent in undertaking surgery on both 15 July and 26 August without any or sufficient radiological or clinical evidence to justify either operation. She also joined Mr Campbell-Connolly as second defendant.
When the matter came for trial in February 1992 the learned judge was concerned with the issue of liability only. During the trial Mr Daniel Brennan QC, on behalf of the plaintiff, withdrew the allegations against the first defendant in respect of the first operation. In his closing submissions he conceded that the plaintiff had no case against the first defendant in respect of the alleged mismanagement of the CSF leak because he was entitled to rely on the skill and knowledge of the second defendant. The judge found in favour of the second defendant and he plays no part in this appeal.
Thus the only issue which fell to be decided was whether the plaintiff had proved that the first defendant's decision to operate on 26 August was negligent. Having accurately set out the law and reviewed the authorities, he posed the question:
"Against that set of legal guidelines does the evidence establish that no responsible body of ordinary medical men, specialising in the first defendant's specialities, would have decided to operate as the defendant did on 26 August?"
He went on to find that the first defendant's decision to operate on the plaintiff was a decision of which a responsible body of medical opinion would have approved.
The appellant seeks to impugn that finding on the ground that it was inconsistent with his findings that:
- The plaintiff did not suffer from radicular pain between 15 July and 26 August 1988; ie pain emanating from nerve roots in the spine and radiating down the nerves.
- Had she so suffered, the respondent would have discovered the fact.
- The presence of radicular pain was in the opinion of the respondent's expert witnesses the primary indication for surgery.
In those circumstances, Mr Brennan submits that it was not open to the judge to conclude that there existed a responsible body of medical opinion which would, on the facts as found by him, have operated on the plaintiff. He further submits that the defendant's own experts said that the second operation would only have been justified if the first defendant had found radicular pain or circumstances from which he deduced that there might be radicular pain.
In order to assess these submissions, it is first necessary to consider what the learned judge found as fact. He accepted that the myelogram performed by Dr Grant showed that there was no evidence of nerve root compression; there was a minimal and insignificant increase in lordosis; there was an appreciable increase in scoliosis which he assessed at approximately 10 degrees; this was not postural, but stemmed from the fused vertebrae resulting from the first operation.
He then considered the factors which led to the first defendant to decide to operate:
"These findings cover the factors upon which the defendant relied in making his decision to operate but they may be summarised as follows: the fact of the earlier operation, the subsequent altered pattern of pain, the restricted straight leg raising, the wasted right buttock, the intractable pain, the 10 degree increase in scoliosis due to the first operation."
Earlier he had summarised part of the evidence of Mr Findlay (which he later accepted), an orthopaedic surgeon called on behalf of the first defendant.
"He would not accept that it was inconceivable to have nerve root compression without such signs. He said that 30% - 40% of the patients upon whom he operated for nerve root compression exhibited no neurological signs, though in such cases he would have had myelographic confirmation of his diagnosis. His usual procedure was to have had a myelogram. If this was negative he would ordinarily seek a CT scan or an MRI but he said that if one was not available he would in the right circumstances give consideration to undertaking an exploratory operation."
On this analysis I cannot accept the proposition that the learned judge found either expressly or by implication that the plaintiff was not suffering from radicular pain. At most he found that the plaintiff was exhibiting symptoms and signs which did not of themselves amount to radicular pain. He was satisfied that it was not unreasonable for the first defendant to draw the logical inference that there might be nerve root compression even in the absence of unequivocal evidence to that effect. He also accepted that the logic which led the defendant to believe that the first operation must have been responsible for the new pattern of pain, to be prima facie reasonable. Having classified the operation as "exploratory or investigative", he continued:
"In the circumstances I see nothing in principle which is unreasonable in a spinal specialist carrying out an exploratory operation provided adequate safeguards are in place to protect the interests and welfare of the patient as they must, of course, be too in other fields of surgery. It is not for this court to attempt to devise a comprehensive list of what they might be. My concern at this juncture is whether a decision in the circumstances of this case to conduct an exploratory operation solely on the strength of a logical inference that there might be nerve root compression is one which no responsible body of surgeons practising in the defendant's specialism would countenance.
Having accepted, as I do, the integrity of the evidence given by Mr Findlay and Mr Webb, I feel impelled to accept that part of their evidence which says they speak on behalf of all those specialising in spinal surgery when they say that such a decision would not be unreasonable; on the contrary, it would be necessary."
Mr Brennan advances a second ground that if the learned judge found that a responsible body of medical opinion existed which would have operated on the plaintiff in the absence of neurological signs of nerve root compression, radiographic evidence and radicular pain, that finding was not supported by any evidence. In view of what has gone before, I can deal with this briefly.
The judge first reviewed the evidence of the experts called on behalf of the plaintiff to the effect that in the absence of neurological signs of compression an exploratory operation would be unwarranted. The operation entailed such a grave commitment because of the risk of damaging nerve roots which were in no way implicated. A responsible medical body would not recommend surgery on account of intractable pain alone. He then considered the expert evidence on behalf of the defendant. He said:
"In contract Mr Findlay's and Mr Webb's position was that if after an earlier recent operation there is a real prospect that at that operation you have done something amiss to the spine which may have caused nerve root compression, then the spinal specialist must operate. If there was nerve root compression it needed to be corrected promptly; if there was none then it was valuable to have it excluded."
In summarising Mr Findlay's evidence on this issue, the learned judge said:
"The defendant, who had conducted the examinations, was the best and only person able to make a realistic assessment of the nature of the pain and its cause....He endorsed the defendant's logic in thinking that the pain might have been due to a nerve root compression brought about by the altered alignment of the vertebrae at the L 4/5 level; the possibility that there might be an unresolved nerve root compression was potentially too damaging to leave and in consequence the defendant had no alternative but to explore it by an operation."
He then turned to Mr Webb's evidence:
"Mr Webb's evidence reflected this basic position too. He was confident of the logic which argued that the earlier operation had created the problem of the right-sided pain. For this reason he said that it was mandatory for the defendant to check out how it might have done so. Later he said: 'It was mandatory because the pain was indicative of pressure of bone on nerve. I do not know why the nerve was under pressure, I do not know the cause but I am very clear that pressure there was.'"
Finally,
"In short the conclusion of both defence witnesses that the pain might be radicular seems to have been arrived at by process of deduction rather than by clinical assessment. Their justification as the decision to operate was the danger that the logical analysis might be right and it had to be checked out."
Thus there was not only evidence to support the first defendant's decision to operate in the absence of radicular pain, the learned judge unequivocally preferred the evidence of the first defendant's experts to those called on behalf of the plaintiff.
From this analysis, and from the way that the judge proceeded, I can find no substance in the criticisms raised in the first two grounds advanced on behalf of the plaintiff. He correctly analysed the law, he identified the questions of fact which he had to resolve and there was evidence, depending on how he viewed it, to justify his conclusions. In my view there is no basis on which this court would be justified in interfering with the judge's findings of fact on any of the grounds contained in paragraphs 1 - 5 in the amended notice of appeal.
In ground 6 the plaintiff that the learned judge, in accepting the defendant's expert witnesses, fell into error by failing to take into account the fact that, when giving their evidence, those witnesses were assuming that the first defendant had not deliberately falsified his operation notes and had not lied on oath about his findings at operation. The findings that the defendant had deliberately falsified his operation note and lied on oath about his findings are the subject of a cross-notice of appeal.
The learned judge certainly made strong adverse findings against the first defendant in respect of the second operation note. The material parts of that note record:
"There was a marked lordosis at the L4 and L5 segments and marked shingling at the L4 level with unfolding of the ligamentum flavum. There was severe stenosis on the right side due to this shingling and unfolding and this may have been precipitated by the anteriographs being inserted on the left-side with marked distraction so that the right side was actually closed down a little."
Later,
"There was marked lordosis at the L4 segment, less obvious at the L5 level and the shingling was responsible for severe compression of the right L5 nerve root, in addition to the right S1 nerve root....The nerve roots L4, L5 and S1 were seen to be compressed and were decompressed well out into the lateral canals so that quite extensive foramenotomies were performed."
In evidence the defendant said that he had found evidence of nerve compression in the central area of the spinal column. The learned judge treated the accuracy of the post-operative note as affecting the defendant's credibility. He said:
"I go straight away to the issue as to whether the defendant did find a severe nerve root compression in the area of the central spinal canal which he recorded in his operation notes and about which he told me in evidence."
and later,
"I find that there was no nerve root compression in the central area covered by (the) myelogram; that the operation notes which purported to record its presence were inaccurate and wrong. I must also reject the defendant's oral evidence to the same effect as well."
and,
"He must in my view have known he was making a false record at the time he made it."
Mr Findlay in evidence had expressed the view that he found the first defendant's description of his findings at operation in the area of the central spinal canal difficult to understand and that he would have expected this to have been apparent on the myelogram. In dealing with Mr Webb's evidence the learned judge said:
"Mr Webb frankly and readily expressed the opinion that if the defendant found severe nerve compression of the L4, L5 and S1 nerve roots in the central spinal area at the L4/5 level it was, to use his words, 'inconceivable' that this would not have been shown up on myelogram...."
However, he did not reject expressly or by implication that the defendant in the course of the second operation cleared the foramina (ie the tunnels of the vertebrae through which the nerves exit) of compressing tissue and bone until he had freed the compromised nerves. Nor did he reject the first defendant's assertion that following this procedure the symptoms complained of were relieved. No criticism was levelled at the surgical technique adopted by the first defendant. It is not in dispute that the plaintiff's subsequent problems were related to infection and the development of the CSF leak which resulted from the non-culpable perforation of the dura. This led to the development of arachnoiditis.
With respect to the argument advanced by Mr Brennan, I cannot accept that the learned judge's findings had the fundamental or far-reaching effect that the plaintiff seeks to assert. In my view the appellant's emphasis and reliance upon this finding by the learned judge is not justified. Neither the accuracy of the note nor the judge's finding of falsity was determinative of any of the issues that the judge had to decide.
The conclusions and opinions of the first defendant's pre-operative decision for further surgery was justified, did not depend upon an assumption by them that the post-operative note was accurate. Mr Findlay and Mr Webb were of the opinion that the severe pain suffered by the plaintiff following the first operation was by a process of deduction due to nerve root compression, or the possibility of it. They attached significance to the increase in the scoliosis at the level of the first operation, coupled with the altered and deteriorating pattern of pain.
Mr Piers Ashworth QC, on behalf of the respondent, submits on the cross-notice that the learned judge fell into error, that these findings were founded on a misconception and that the learned judge was not justified, on the evidence, in finding that the first defendant had deliberately dictated a false operation note within minutes of the conclusion of surgery.
In my judgment, in view of my rejection of the plaintiff's ground of appeal, it is not necessary to open up this issue. However, Mr Ashworth is understandably concerned about the effect upon the reputation of a distinguished surgeon in the light of the judge's further comment. Having found that the defendant was making a false record, he continued:
"The fact that he should have falsified his notes in this way is so bizarre that it has caused the court to think hard and long before coming to this conclusion. One can only speculate why he should have done so....One can only conjecture that in an unguarded moment of depression and/or disappointment when he realised his diagnosis had not been substantiated he dressed up his findings in a cloak of wishful thinking. This at least is the basis on which I have taken account of this unhappy chapter of events."
Bearing in mind that the first defendant was called upon to answer the charge of falsification in cross-examination before he had heard the evidence of the plaintiff's experts on the issue, the fact that criticism of the second operation, or his decision to perform it, was first made three and a quarter years after the event, and the fact that he was giving evidence on this aspect from recollection after a period of five years, I am left with some unease as to whether such heavy additional comment was justified.
Finally, Mr Brennan submits that the learned judge erred in finding that the declared view of the first defendant's expert witnesses that it was permissible to operate on the spine in the absence of any such indications other than radicular pain, was a responsible medical opinion. He takes as his starting point the well-known passage of McNair J in his summing-up to the jury in Bolam v Friern HMC [1957] 1 WLR 582 at p 587:
"I myself would prefer to put it this way that (a doctor) is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
It was submitted that the Bolam test was not designed to enable small numbers of medical practitioners, intent on carrying out otherwise unjustified exploratory surgery, to assert that their practices are reasonable because they are accepted by more than one doctor. If it appears from the evidence that the body of medical opinion relied upon by the defendant is both very small and diametrically opposed in its views to the conventional views of the vast majority of medical practitioners, the court should be vigilant in carrying out its duty to test whether the body of medical opinion relied upon by the defendant is a "responsible" body.
Leading counsel referred us to the evidence that there are only eight or so orthopaedic surgeons in the country who come within the body of medical practitioners called "spinal surgeons"; there are only three neuro-surgeons in the country who come within this body. A body of eleven doctors out of a total of well over 1000 orthopaedic surgeons and neuro surgeons is very small. The experts called on behalf of the first defendants accepted that "normal medical opinion" would not have countenanced surgery in this case and that those who would have countenanced surgery were a very small body of "spinal surgeons". Accordingly it was the learned judge's duty to analyse carefully and with reservations the reasons put forward by the spinal surgeons for advocating a practice thought to be dangerous and unmerited by the vast majority of responsible practitioners.
Counsel further submitted that even if the small number of spinal surgeons could be considered responsible, nonetheless they had to be a "substantial" body. He cited Hills v Potter [1984] 1 WLR 641 where Hirst J stated at 653C:
"I do not accept Mr Stone's argument that by adopting the Bolam principle the court in effect abdicates its power of decision to the doctors. In every case the courts must be satisfied that the standard contended for on their behalf accords with that upheld by a substantial body of medical opinion, and that this body of medical opinion is both respectable and responsible, and experienced in this particular field of medicine."
Counsel submitted that in using the word "substantial" the judge was doing so in a "quantative sense". He also cited the decision of the Supreme Court of Ireland in Dunn v National Maternity Hospital [1989] IR 91. Findlay CJ, having reviewed Irish authority and giving the judgment of the court, said:
"The principles thus laid down....can in this manner be summarised:
(1) The two tests for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or generalist status and skill would be guilty of if acting with ordinary care.
(2) If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was the one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications."
and later,
"In order to make these general principles readily applicable to the facts of this case....it is necessary to state further conclusions not expressly referred to in the cases above-mentioned. These are:
(a) 'General and approved practice' need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications."
Thus it is contended that eleven spinal surgeons, including the first defendant and the two expert witnesses, do not constitute "a substantial number of reputable practitioners" etc. It is not sufficient to raise the Bolam defence by resorting to such a small number. There must be a satisfactory evidential basis for the defence to succeed.
My first observation is that the Bolam test does not impose any burden of proof upon the defendant to establish that his diagnosis or treatment would be acceptable to a responsible body of medical opinion. The burden of proof is upon the plaintiff. As the learned judge correctly put it at p59F
"Has the plaintiff proved that the decision to operate on that basis was a decision that no reasonable doctor working within their specialism would take?"
In English law the word "substantial" has only appeared in the judgment of Hirst J cited above. In particular the authoritative passage in this respect is to be found in Maynard v West Midlands RHA [1984 1 WLR 634, a decision of the House of Lords in which Lord Scarman in his speech at 637H stated:
"The only other question of law -- is as to the nature of the duty owed by a doctor to his patient. The most recent authoritative formulation is that by Lord Edmond Davies in Whitehouse v Jordan [1981] 1 WLR 246 when he said:
'The test is the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon fails to measure up to that standard in any respect (clinical judgment or otherwise) he has been negligent. The present case may be classified as one of clinical judgment.'"
Later at 638E,
"It is not enough to show that there is a body of competent professional opinion that considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper."
And later,
"I would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical and in other professions. There is seldom any one answer exclusive to all others to problems of professional judgment. A court may prefer one body of opinion to the other; but that is no basis to a conclusion of negligence."
Similarly, in Sidaway v Governors of Bethlem Royal Hospital [1985] 1 AC 871 Lord Diplock at page 895 said:
"In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon's shoes; it has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect or any preference it may have for on responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion."
Thus I do not consider the learned judge fell into error in not considering whether the body of spinal surgeons had to be substantial. It was sufficient if he was satisfied that there was a responsible body. Was the judge in this case justified in so holding? Mr Findlay is a consultant neuro-surgeon specialising exclusively in spinal surgery since 1985. He is a member of the International Society for the Study of the Lumbar Spine of which there are some 250 members world wide of whom four or five are neuro-surgeons. He has run spinal study training courses since 1984 and was editor of the text book on spinal surgery published in 1992. He practices at the Walton Hospital in Liverpool performing some 400 operations a year.
Mr John Webb is an orthopaedic surgeon whose training included a post at the Robert Jones and Agnes Hunt Orthopaedic Hospital, Oswestry. He is a Fellow of the British Orthopaedic Association and of the International Society for the Study of the Lumbar Spine. He considers himself a spinal surgeon pursuing this specialism at Queens Medical Centre, Nottingham where 90% of his time in surgery is spent on the spine. He either performs or is responsible for some 400-500 cases a year. I have already referred to the first defendant's qualifications and experience. Thus, on any basis, the witnesses called were a fair representation of specialists practising in that field.
The learned judge said:
"I address the question as to what is the body of medical opinion about which the defendant should be judged in his specialism. Two spinal surgeons form a category of specialism which is separate and apart from those other orthopaedic and neuro-surgeons who are engaged in a wider field of surgical practice."
He pointed out that the first defendant, Mr Findlay, and Mr Webb were surgeons undertaking tertiary referrals from other consultant surgeons practising in the wider field "seeking out the more limited but focused skills of the spinal specialist". He found that:
"....there is a separate specialism of spinal surgeons comprising both orthopaedic and neuro-surgeons engaged wholly or mainly in spinal surgery."
He thus concluded:
"My concern at this juncture is whether a decision in the circumstances of this case to conduct an exploratory operation solely on the strength of a logical inference that there might be nerve root compression is one that no responsible body of surgeons practising in the defendant's specialism would countenance.
Having accepted, as I do, the integrity of the evidence given by Mr Findlay and Mr Webb, I feel impelled to accept that part of their evidence which says that they speak on behalf of all those specialising in spinal surgery when they say that such a decision would not be unreasonable; on the contrary it would be necessary."
In my judgment these findings cannot be faulted. There was evidence before the learned judge which he clearly accepted to justify his conclusion that a small number of tertiary specialists could constitute a responsible body of medical opinion. It was a matter for the learned judge to assess whether or not he accepted the evidence as to what that opinion was. He clearly did. The issue whether or not to operate could not be determined by counting heads. It was open to him to find as a fact that a small number of specialists constituted a responsible body and that the body would have considered the first defendant's decision justified, or more succinctly, as the learned judge put it, that the plaintiff had failed to discharge the burden of proof that the first defendant was negligent in operating on the second occasion.
It follows that I consider that this appeal should be dismissed.
LORD JUSTICE SWINTON THOMAS: For the reasons given by my Lord I agree this appeal should be dismissed. I also agree with what my Lord has said in relation to the cross-appeal.
LORD JUSTICE LEGGATT: I agree.
Order: Appeal dismissed. Order for payment of the Respondent's costs by the Legal Aid Board subject to the order lying in the office for 10 weeks so that the Area Director may be afforded the opportunity of showing cause why that course should not be followed.
