Surgeon cleared of negligence in case of paralysed man

A man who alleged he was paralysed for two years as a result of the way a complex spinal surgery was carried out may be facing a substantial legal bill after the High Court dismissed his claims of negligent surgery.

After a 40 day hearing, Mr Justice Iarflaith O'Neill found no negligence on the part of consultant orthopaedic surgeon Frank Dowling, practising at Blackrock Clinic, concerning surgery to address curvature of Richard O'Callaghan's spine nine years ago.

The cause of Mr O’Callaghan’s neurological deterioration leading to paraplegia, and his subsequent recovery, had not been explained or established by any expert evidence in the case, and “remains shrouded in mystery”. All the experts agreed this case was unique, the judge said.

Mr O’Callaghan had failed to prove, on the balance of probabilities, his explanation of causation of his inujuries was correct, the judge ruled. The issue of costs will be addressed later.

Mr O’Callaghan (28), Deanewood Avenue, Togher, Co Cork, was paraplegic fourteen days after undergoing surgery in 2005, when aged 19, for curvature of the spine at the Blackrock Clinic, the court heard.

He was told he would never walk again and learned to use a wheelchair but had recovered his ability to walk in 2007.

Mr O’Callaghan sued Mr Dowling, alleging negligence and breach of duty as a result of the paralysis. Mr Dowling denied the claims and pleaded the injury to Mr O’Callaghan resulted from reduced blood supply to the spinal cord as a result of straightening of the spine, a recognised complication of this surgery.

In his judgment, Mr Justice O’Neill said there was no doubt the surgery to correct the curvature was necessary and timely.

The case centred on whether there was an alleged breach of duty in proceeding with the surgery without a form of electronic monitoring of the spinal cord sensory responses, he said. Mr Dowling used what was known as the wake up test where a patient is allowed to partially emerge from anaesthesia sufficiently to respond to verbal commands.

In the wake up test result, Mr O’Callaghan could move his lower extremities but Mr Dowling sensed all was not well and brought him back to theatre, where he removed all of the metal work placed in the spine, the judge said. Mr O’Callaghan quickly recovered neurological function but a correction of the deformity had to be abandoned.

Had Mr Dowling used the electronic monitoring, it was highly unlikely it would have alerted him to spinal cord injury as the wake up test produced a positive result and Mr O’Callaghan was able to move his lower limbs, he found.

Wile finding that Mr Dowling, in not using the electronic monitoring, deviated from general and approved practice, the judge said he was also satisfied the failure to use electronic monitoring had not caused the neurological injury which afflicted Mr O’Callaghan subsequently.

“The risk of injury to the spinal cord is a rare but well known complication of this surgery,” he said.

In doing the second wake up test, Mr Dowling detected the injury and quickly took the appropriate remedial action which resulted in immediate neurological recovery, the judge found. He also ruled that Mr O’Callaghan’s deterioration between September 19th and 25th 2005, or in October 2005, was not caused by his mobilisation.