Negligence claim against surgeon rejected at High Court

A High Court judge has found there was no negligence by a surgeon in his care and treatment of a man who claimed he developed paralysis in his right leg and severe pain after undergoing a spinal fusion procedure in March 2010.

Eugene McCormack, a retired butcher and farmer of Clongowney, Dublin Road, Mullingar, Co Westmeath, previously settled his claims against the Mater Private Hospital and Mater Private Healthcare in relation to a specific incident post-surgery where part of a catheter was left inside him.

A hearing proceeded of his claim of negligence against Dr Marcus Timlin, a consultant orthopaedic surgeon with a practice at the Mater Private Hospital. That claim was dismissed by Mr Justice Kevin Cross in a judgment on Friday.

Mr McCormack, the judge noted, had a significant past medical history including, from 2007, operations for back pain performed by other doctors. He was referred in April 2009 to Mr Timlin with back problems “as bad as ever”.

His claim against Mr Timlin concerned the latter’s care of him between March 11th and March 19th, 2010.

It was alleged he had developed Cauda Equina Syndrome (CES) which was not addressed until March 19th and, as a consequence of failure to address it in time, suffered significant personal injuries.

The cauda equina nerves spray out from the bottom of the spine leading into the lower limbs and a patient can develop CES if pressure is brought to bear on them. CES can result in total loss of function of the lower limbs or significant injury and incapacity.

Having assessed the evidence, the judge found, after index surgery on March 10th, 2010, Mr McCormack was suffering from a developing CES resulting in pressure on his nerves.

Had a revision operation carried out by Mr Timlin on March 19th been done on March 16th, 17th or possibly 18th, the developing CES would have been dealt with earlier and without, at least, a considerable number of the resulting symptoms, he found.

Had the intervention occurred earlier, Mr McCormack would not have developed the post-operative CES, neuropathic pain in both lower limbs, right sided foot drop as well as some of the bladder pain, urinary dysfunction and other difficulties, including a considerable amount of his significant depression and two suicide attempts, he accepted.

MRI scan

He also accepted the developing CES was there to be interpreted from films of an MRI scan of March 16th. Despite those findings of fact, the plaintiff had failed to show, on the balance of probabilities, Mr Timlin was negligent, he ruled.

The plaintiff had not shown Mr Timlin’s diagnosis, based on his discussions with the radiologist and an orthopaedic colleague, that the MRI films did not demonstrate any haemotoma which might put pressure on the cauda equina nerve, was of such failure no medical practitioner of equal expertise would be guilty of it if acting with ordinary care.

Mr Timlin’s approach was a “gold standard” one confirmed by an independent expert professor and, together with an orthopaedic colleague, conservative management was proposed, he said.

The developing CES was “a marginal thing” and Mr Timlin could not be faulted for his interpretation of the MRI and the course of action he took arising from his opinion. Had Mr Timlin been made aware of “potentially alarming” findings in a physiotherapy report of March 11th on Mr McCormack, which reported numbness in both buttocks, he was satisfied he would have acted sooner, he said.

It was also “unfortunate, to say the least” that Mr McCormack’s own complaints and concerns to nurses were not fully noted and passed on to Mr Timlin. He could not conclude Mr Timlin’s decision not to operate until March 18th, where there was a deterioration of neurological signs, and the operation being carried out as soon as possible on the 19th, was negligent.

Costs issues of the 12 day case will be decided later.