Case comment: Lesforis v Tolias, Court of Appeal, 25 March 2019

In May 2018, Mr Justice Spencer found that Mr Christos Tolias, a consultant neurosurgeon, had been negligent in giving his patient heparin too early following spinal surgery.  This led to the patient suffering a haematoma which, in turn, compressed the spinal cord and resulted in incomplete paraplegia.

Mr Tolias obtained permission to appeal on a single ground: that the judge failed to address the key question, namely whether giving antithrombotic medication to this particular patient within 3 hours of surgery was a breach of duty.

The appeal was dismissed.

 

The Facts

The patient, Mrs Lesforis, underwent decompression surgery to treat her spondylolisthesis (narrowing of the spinal canal) on 27th June 2013. The operation appeared to go well, apart from a minor dural tear which was swiftly corrected.

The patient was taken to intensive care after the operation.  About 3 hours later, she was given Clexane (low molecular weight heparin) to reduce the risk of deep vein thrombosis.

Two days later, the patient was unable to feel her legs or wiggle her toes.  Mr Tolias operated again but failed to relieve the patient’s neurological injury.  She became wheelchair-bound with bladder and bowel problems.

 

First Instance

The judge found that Mr Tolias was negligent to administer Clexane within 6 hours of the operation and that this caused or materially contributed to the patient’s injuries.  The reasoning was that chemo-prophylaxis protected against the risk of blood clots but increased the risk of post-op bleeding at the operative site.  The bleeding can lead to haematomas, which can put pressure on nerves in the spine.  If not treated promptly, this can result in permanent injury, which is what happened to Mrs Lesforis.

In his witness statement, Mr Tolias commented:

An overweight patient such as Mrs Lesforis, particularly one who is going to remain flat for 48 hours after the operation because of the durotomy, is at increased risk of venous thromboembolic events and therefore Clexane is indicated […] it is my normal practice to give anti-DVT chemo-prophylaxis (Clexane) very early post-operatively to all my cranial or spinal patients and I am surprise to see it is criticised in the Letter of Claim.’

The judge found that Mr Tolias prescribed Clexane to this patient because he did so early for all his post-op spinal patients.

The Claimant’s expert, Mr Leach, opined that administrating Clexane within 6 hours of the operation, at a time when the risk of haematoma is increased, was a breach of duty in 2013.

The Defendant’s expert, Mr Cadoux-Hudson, stated in the joint expert report that ‘The precise timing [of chemoprophylaxis] is at the surgeon’s discretion, weighting the risks and benefits to the patient.’

The judge preferred the evidence of Mr Leach, noting that neither expert had provided any evidence that there was a body of surgeons who routinely gave chemo-prophylaxis (“CP”) within 6 hours of surgery.  The judge commented: ‘this is likely to be because there was no such body of surgeons’.

The judge was also unimpressed with Mr Tolias’ practice of giving all post-spinal surgery patients early CP, instead of assessing the particular circumstances of the patient.

 

The Appeal

Mr Tolias’ appeal was based on the fact that, although the judge accepted the existence of 3 risk factors in Mrs Lesforis’ case (i.e., patient overweight, immobile for 48 hours post-op, and operation time over 90 minutes), he dismissed the risk factors as irrelevant to the timing of the CP and failed to appreciate that this timing was a matter of clinical judgment based on balancing risks and benefits.  The correct question, according to Mr Tolias’ counsel, was whether there was a justification in this particular case to give CP within 6 hours.

The Court of Appeal dismissed the appeal.

It noted that the judge did refer to the  3 risk factors and found that, although they were reasons for giving CP, they ‘did not speak to the timing of the prophylaxis.’  This was also the view given by the Claimant’s expert, Mr Leach, in his live evidence:

Q: So the fact that she had no less than 3 risk factors for VTE would militate – would support giving chemoprophylaxis sooner rather than later?

A: No, it would support the use of chemoprophylaxis.

The Court of Appeal concluded that the judge was entitled to draw the conclusion he did from the evidence.  It added that, even if the risk factors were relevant to the timing of the CP, Mr Leach’s evidence remained that giving it less than 6 hours post-surgery was negligent.

The appellate court did not find that the judge addressed the wrong question, but that he did not think the risk factors in this case justified a departure from the usual rule that CP should be administered later than it was.

Finally, the Court of Appeal found it ‘striking’ that Mr Tolias sought to justify his decision to give Clexane so soon only by reference to his normal practice and gave no evidence that he carried out a risk/benefit assessment that would have led him to the conclusion that early administration of Clexane was indicated in this case.

Another ‘striking’ feature for the Court was Mr Cadoux-Hudson’s failure to give any evidence of surgeons who gave CP within 6 hours of spinal surgery, except on re-examination.

 

Comment

This was a case, like many clinical negligence cases, where much turned on the evidence of the medical experts.  In such cases, relatively small details can tip the balance one way or the other.  Experts and lawyers must expect a high level of scrutiny at trial and ensure that their expert evidence is as close to perfect as possible.  This requires a critical analysis of what is included in the reports and joint statements, but also what is omitted.

For example, one question in the experts’ agenda read:

Do you agree that there are some spinal surgeons who would have prescribed chemoprophylaxis against venous thromboembolism within 6 hours of surgery?

The Defendant expert’s answer was:

Mr Cadoux-Hudson is of the view that CP is theoretically more effective the closer to the surgery even.  The precise timing is at the surgeon’s discretion, weighting the risks and benefits to the patient.’

This answer is an invitation to trouble on cross-examination, as it fails to address the question.  Mr Justice Spencer picked up on it in his judgment at [56]:

‘It seems to me this is not an answer to the question and Mr Cadoux-Hudson’s failure to answer the question directly is surprising.’

The questions in agendas are usually constructed with some care and experts must make sure they answer them directly, or at least explain if and why they cannot do so.

Another example is Mr Cadoux-Hudson’s failure to mention his awareness of surgeons who administer early CP until he was re-examined by counsel at trial.  The late mention of this information led Mr Justice Spencer to disbelieve him entirely on this point.  This was potentially significant information that should have been included in the expert’s liability report.

Finally, the case reiterates the reluctance of appellate courts to challenge the findings of fact of judges below, whether concerning lay or expert witnesses: ‘What inferences it is proper to draw from oral evidence is very much a matter for the trial judge who hears the evidence, sees the witnesses and is best placed to understand the context.’ [44]