Case No: CM301130
Neutral Citation Number: [2005] EWHC 956 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19th May 2005

Before :

MR JUSTICE RODERICK EVANS
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Between :

	ANDREW LEAKE	Claimant	
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	JOHN TARGETT	Defendant	

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Mr Eliot Woolf (instructed by Gadsby Wicks) for the Claimant
Mr Ranald Davidson (instructed by Medical Protection Society) for the Defendant 

Hearing dates: 25th – 29th April 2005
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Judgment

Mr Justice Roderick Evans : 
The Action
1.	The defendant is a consultant orthopaedic surgeon.  On 13th March 2000 he carried out a spinal fusion procedure on the claimant at the Bupa Hartswood Hospital in Brentwood, Essex.  No complaint is made about the decision to operate; nor is any complaint made which is relevant to any matter that falls for decision in this case about the manner in which the operation was performed.  Complaint is, however, made about the post-operative care given to the claimant by the defendant. 
2.	On 24th August 2000 the defendant carried out revision spinal fusion surgery on the claimant which has left the claimant with a left foot drop.  Again no complaint is made about the manner in which the revision surgery was carried out; it is conceded that this difficult operation was undertaken with appropriate skill and competence.  However, the claimant alleges that the revision surgery was delayed as the result of the defendant’s negligent post-operative care and that had the revision surgery been carried out promptly, the foot drop would have been avoided.
3.	Liability is in issue but subject to liability being proved, damages are agreed in the sum of £60,000.
Background
4.	The claimant was born on 21st January 1970.  In the mid 1990’s he developed what has been described as mechanical back pain.  Following referrals by his general medical practitioner to various physiotherapists and to a consultant orthopaedic surgeon who treated the claimant conservatively, the claimant was referred to the defendant towards the end of 1999 with a view to consideration being given to surgical intervention. 
5.	On 13th March 2000 the defendant carried out an instrumented spinal fusion at levels L4/5 and L5/S1.  The purpose of the procedure was to eliminate movement between the fused vertebrae and to get rid of the mechanism of pain.  The defendant adopted a posterior approach i.e. entry by a midline incision in the claimant’s back.  This approach requires that muscles and nerve roots are retracted in order that access to the spine be gained and this interference with the musculature and the nerve roots results in post-operative pain.
6.	Stabilisation of the spine is achieved by a combination of two elements.  Firstly, pedicle screws are inserted into each vertebra – one on either side of the mid line and a plate is placed over the heads of the screws and secured.  The intention was to place two pedicle screws in each of L4, L5 and S1 but the pedicles at L5 were too narrow to take screws.  Consequently four screws rather than the intended six were inserted.  Secondly, intervertebral disc material is removed and structures called cages are inserted between the vertebrae – again one on either side.  Four cages were inserted, two between L4 and L5 and two between L5 and S1.  These cages which measure 25 millimetres long by 9 millimetres high are inserted length wise and contain bone grafts which join one vertebra to another.  The defendant in evidence said that during the operation he ensured that the cages were inserted as deeply as possible within the intervertebral spaces and that they did not protrude posteriorly.
7.	From the operation notes it appears that no particular problem arose during the claimant’s operation and that immediately after the operation the cages were satisfactorily positioned.  The cages, however, can move and it is necessary to exercise vigilance to ensure that cage movement does not compromise the spinal fusion.  There are two areas of concern.  Firstly, although movement of a cage may be asymptomatic, further or progressive movement of a cage can bring the cage into contact with nerve structures.  External compression of a nerve could lead to loss of sensation, numbness and pain and alteration in reflexes might also follow.  The most serious situation which could arise would be compression of the cauda equina leading to cauda equina syndrome which is an extremely serious clinical condition.
8.	Secondly, movement of a cage or cages, depending on the number of cages which have moved and/or the degree of movement which has taken place might compromise the stability of the construct put in place by the surgeon and could cause the fusion of the vertebral bodies to fail.  
9.	On the evening of the operation, the claimant was seen by the defendant and the nursing notes record the claimant as complaining of pain.  On 14th March the defendant saw the claimant twice; once at 0715hrs and again at 1900hrs.  The defendant entered in the clinical notes:
“One day post-operation spinal fusion.  Pain rated 8½ over 10! Numbness in feet.  Right greater than left.  On examination reduced sensation L4/5 both legs.  Numb soles and toes.  Ankle jerks absent in both legs: knee jerks absent in left leg present in the right leg.  Check x-ray tomorrow.  Drain out today.”
10.	The nursing notes for the 1900hrs visit record:
“Mr Targett aware of pins and needles and reduced sensation in both legs.”
11.	 There is no record that the defendant saw the claimant on either 15th or 16th March.  However, the nursing notes record that the claimant was receiving painkillers and at 1930hrs on 15th March the claimant is noted as remaining uncomfortable and anxious concerning the numbness.   On 16th March x-rays were taken of the claimant’s back.
12.	There is no record in the clinical notes that the defendant saw the claimant on 17th March.  However, the nursing notes reveal not only that the defendant did in fact see the claimant but that he also saw the x-rays.  At 0045hrs the claimant is recorded as complaining of increased pain.  At 0745hrs the following note appears:
“Reviewed by Mr Targett.  Voltarol to be given per rectum and regular analgesia as required.  To encourage mobilisation.  Seen x-rays.”
13.	A further note of 17th March – timed only as “day” - records that pain was better controlled by regular analgesia and that the claimant had more sensation in his feet, the right being greater than the left.  At 2040hrs a telephone call from Mr Targett is noted and the words “pleased with progress”.
14.	What the defendant noticed when he looked at the x-rays on 17th March is central to the issues of this case and there is a dispute between the parties as to what if anything the defendant told the claimant about what the x-rays revealed.  I shall return to these matters in due course.  In evidence the defendant said that on 17th March he saw from the x-rays that one of the intervertebral cages had shifted and that he then considered the two options which were available to him.  The first was to proceed to early revision surgery which would have involved re-entering the site of the first operation, again retracting the muscles and nerve roots and replacing the cage which he had seen had shifted.  The alternative course was to adopt a wait and see policy and monitor the claimant’s condition.
15.	The defendant says that he considered that the claimant’s symptomology was not inconsistent with the temporary neuropraxia suffered by patients who have undergone this type of surgery and that the claimant’s neurological symptoms were due to traction on the nerve roots at surgery.  He did not consider that the neurology suggested compression of a specific nerve root and took the view, in the light of the good positions in which the cages had been placed at surgery, that the position of the cages was acceptable.  He, therefore, decided upon the wait and see approach.
16.	The defendant made no entry in the claimant’s clinical notes to indicate that he had noticed movement of any cage.
17.	The nursing notes for 18th March record the claimant complaining at 0150hrs of pain in both buttocks which he thought might be muscular and at 0430hrs as complaining of pain and numb feeling in both legs; sensation was present.  At 0645hrs the claimant walked around his bed with assistance and complained of back pain radiating down both legs.  By 0715hrs the claimant was saying that the pain was much less.  At 1300hrs there was still some pain on mobilising and his feet were still slightly numb.  In the afternoon of that day, the claimant is recorded as continuing to have some pain.  On this day and on 19th March the notes referred to the administering of analgesia to the claimant which was required regularly.  The defendant saw the claimant on both these days.  
18.	On 20th March the defendant reviewed the claimant and recorded in the clinical notes:
“Slight numbness in both legs: left side – toes only: right side whole of foot.  Numbness has been improving gradually over the last week.  Home tomorrow.”
19.	On 21st March the claimant was discharged home. 
20.	On 10th April 2000 the defendant reviewed the claimant as an outpatient.  The defendant noted:
“One month post-operation: numbness post-operation, left leg much better.  Right leg still outer side calf and third toe.  Calf pain on right – goes when he lies down.  Walking well wound fine.”
21.	The defendant referred the claimant to a physiotherapist with a recommendation that he undertake stretches only.
22.	The defendant had written to the claimant’s general practitioner on 15th March informing him that his patient had recently undergone surgery and sending to him a copy of his operative findings and procedure.  He stated in that letter that he would report to the general practitioner following post-operative review of the claimant.  On 17th April 2000 the defendant wrote to the claimants general practitioner and reported as follows:
“This gentleman is recovering gradually from instrumented lumber spinal fusion.  The wound is healing nicely and is not especially tender.  He does have a deep aching discomfort around the wound.  Post-operatively he had numbness in both legs.  On the left side this has improved considerably.  On the right side the numbness is persisting.
At this stage I feel reasonably confident that he will continue to improve and I am optimistic that the nerve root systems will settle.  Certainly at surgery the nerve roots were quite strongly retracted in order to do the operation.”
23.	There is no mention in this letter that the defendant had seen on the post-operation x-rays that one of the intervertebral cages had moved or that there was any intention of taking further x-rays in the future to monitor the position of the cages.  Indeed it is common ground in this case that following the x-rays of 16th March no further x-rays were taken of the claimant’s back until August 2000 to which I shall turn shortly.
24.	In evidence the defendant said that he would withhold from a patient’s general practitioner the information that a cage had slipped because general practitioners do not appreciate the significance of the position of cages and he, the defendant, would make a judgment on the significance of slippage in the light of the patients clinical condition and then consider whether to withhold the information.  Furthermore, he does not always tell patients that slippage has occurred; despite what might appear on x-ray as a poor cage position, a patient might do well.  He would withhold the fact of slippage from the patient if he thought it was in the patients best interest to do so – for example not to alarm the patient – as patients “cannot use the information usefully”.  
25.	The defendant further reviewed the claimant on 8th May 2000.  The clinical note of that review reads as follows:
“Pain right calf and back of thigh.  Helped by massage.  Numbness in right foot less, still in outer side of right foot – also outer right thigh.  Left leg no numbness.  On examination “Calves soft no tenderness, full range of movement in knees.  Graduated return to work in two months (SIC).”
26.	Following this review the defendant wrote on 10th May to the claimant’s general practitioner.  The letter reads:
“The gentleman is making steady progress following his instrumented lumber spinal fusion.  He has been having physiotherapy and was progressing well.  Recently he developed some pain in the right calf which has been helped by local treatment and I think this is not radiating from his back.  The numbness in the right foot which he had after surgery is lessening.  It still affects the outer side of the foot.  He has a little residual numbness in the outer side of the right thigh.  The left leg has no neurological symptoms.  
I have given him advice about further exercises and mobility etc. and I would expect him to gradually improve with time.  He is going to try a graduated return to work in two weeks time and I shall review him two weeks after that.”
27.	On 25th May the claimant returned to work.  Up until then the claimant says he had spent much time resting and undertaking exercise only to the extent recommended by the defendant.  He had taken a view that it would take 6 – 12 months for his back to feel normal and he viewed continuing discomfort on the basis of that anticipated progression.  When he returned to work he was continuing to experience discomfort and on coming home at night he had to lie down to relieve the pain.  He said in evidence that he did not notice much of a change occurring following his return to work as he had not got that much better since the operation.  At no time between the operation in March and the revision surgery in August had there been any sudden change in his condition; there was no defining moment of change such as might have been expected if a particular movement such as swinging a golf club had caused a change in the position of the intervertebral cages.
28.	The next review was on 12th June 2000.  The defendant’s clinical notes read:
“Numbness outer side of right thigh: right foot toes – sensation returned: no effect on mobility.  Back ok – slightly bruised and stiff feeling (around) right upper pin.  Trip to Devon in car ok.  Driving not too bad.  Driving range – golf – ok.  See in three months x-ray on arrival.”

29.	The claimant said that he told the defendant in each consultation that his back did not feel right or normal and this may be reflected in the letter that the defendant wrote to the claimant’s general practitioner following the June consultation:
“This gentleman is slowly but surely improving following his spinal fusion three months ago.  He still has some numbness on the outer side of his right thigh and the sole of the right foot but things have improved around the toes and apart from a bruised and stiff feeling his back is comfortable.  He recently made a long trip to Devon and back with very minimal discomfort.  He has also returned to the driving range to swing a golf club.  I have reiterated to Mr Leake that it will be some time before his back feels “normal” but I am pleased with his progress to date.  I do hope that his residual neurological symptoms in the leg will continue to improve.  I have asked him to return for review in three months time for an x-ray.”
30.	By early August the claimant, according to his evidence, was experiencing continuing pain and persistent numbness.  There is an issue as to the degree, if any, to which the claimant’s symptoms had deteriorated by August.  The claimant’s evidence is that he brought the planned September appointment forward because he felt that so many months after his operation he had not reached the recovery stage which he felt he should have reached.  The defendant, however, argues that the claimant’s symptoms worsened and that was the reason for advancing the appointment. 
31.	In any event, the claimant was seen by the defendant on 7th August.  X-rays were taken of the claimant’s back and the defendant’s clinical note was made after the defendant had reviewed the x-rays.  That note reads as follows:
“In trouble.  Symptoms in both legs.  Back – area of tenderness on right.  Left leg – variable numbness in thigh.  Right leg – weakness.  X-ray – 4/5 cage – 1 is very posterior. ? prominent right S1 screw head.  Compare other films.
Plan: remove left 4/5 cage or replace.
? Swap pedicle fixation.”
32.	On 10th August 2000, a fortnight before the revision surgery was undertaken, the defendant wrote to the claimant’s general practitioner in the following terms:
“I reviewed this gentleman today and I am sorry to say that his progress is not good following instrumented spinal fusion.  He is in trouble with both his legs more so on the right and whilst he is trying to get to work, he is battling against leg symptoms.  His back is also uncomfortable and specifically so in one area.
X-ray shows that one of the intervertebral cages has shifted position although I do need to check this with his previous x-ray films.  In view of all this I think revision surgery is going to be necessary, firstly to remove the cage which has shifted position and secondly to consider some alternative fixation or method of insuring adequate spinal fusion.”
33.	The defendant’s operation note relating to the revision surgery of 24th August notes as follows:
“Old midline scar excised.  There were dense adhesions and scarring retraction of erectus spinae muscles bound to both pedicle screws and plates.  The screws and plates were secure and I saw no indication to change these.  There was no evidence of irritation around the right L4 screw head (the site of continued discomfort for Mr Leake).  A difficult and bloody dissection ensued with careful dissection around the L4, L5 and S1 nerve roots down to the L4/5 and L5/S1 disc spaces.  All four cages were in a poor position, one in particular was significantly impinging on the anterior dura.  Considerable nerve root retraction and dural retraction was necessary to retrieve the cages which were difficult to remove.”
What was the defendant’s interpretation of the x-rays of 16th March 2000
34.	The starting point for deciding the issues which arise in this case is to determine how the defendant read the x-rays of 16th March 2000.  It is the claimant’s case that the defendant failed to notice any prolapse of the cages, a suggestion, the defendant points out, which was expressly made for the first time very shortly before trial.  This suggestion is founded in the claimant’s evidence that after the x-rays had been taken the defendant told the claimant that everything was normal.  The short account of this conversation contained in the claimant’s witness statement was expanded upon in oral evidence before me.  The claimant said the x-rays were considered in front of him by the defendant on an occasion when the defendant came to see him in the early evening.  The x-rays were at the end of the claimant’s bed and the defendant put them onto a light box to look at them.  Having done so the defendant said that everything looked fine or words of that general nature.
35.	The defendant denies that he told the claimant that the x-rays showed that everything was satisfactory and says that the claimant’s account of the circumstances in which the conversation took place is demonstrably inaccurate and that this casts doubt on the claimant’s evidence.  The notes relating to 17th March show that the defendant visited the claimant in the morning not the evening and the defendant asserts that the rooms in the Hartswood Hospital do not have light boxes in them.  His practice was to hold the x-rays up to a window or a strip light in a patient’s room.
36.	Although it is the defendant’s evidence that he saw on the x-rays that one cage had moved, his evidence about which cage he saw has not been constant.  In his witness statement dated 9th June 2004 (paragraph 14) he refers to “the spinal cage at L4/5” as not being in an “ideal” position but at the beginning of his evidence he sought to correct that by saying that the cage he had noticed as having moved on the 16th March x-ray was cage L5/S1.  The confusion had arisen in his mind because he did not have much access to the x-rays in this case in the run up to the trial and he was aware from his clinical notes of the August 2000 out-patient consultation that cage L4/5 was the troublesome one at that time.  This had coloured his recollection of the earlier x-rays.  He had had access to the x-rays during one pre-trial conference.  He did not then seek to correct his statement but did so at the start of his evidence having looked again at the x-rays on the first day of trial.
37.	Both sides have had the 16th March x-rays and indeed those of 17th August examined by two sets of experts; firstly consultant radiologists – Dr Saifuddin for the claimant and Dr Wilson for the defendant and secondly consultant orthopaedic surgeons – Mr Noordeen for the claimant and Mr Morley for the defendant, both of whom gave evidence before me.  The findings of these four experts on the distances by which the cages were protruding are set out in the table below:
Table 1 – X-ray March 2000
	Claimant	Defendant	
	Dr Saifuddin	Mr Noordeen	Dr Wilson	Mr Morley	
Right L4/L5	3-4mm	5mm	3mm	4mm	
Left L4/L5	Well positioned	Well positioned	Well positioned	Well positioned	
Right L5/S1	13mm	10mm	11mm	5mm	
Left L5/S1	4mm	2mm	2mm	No movement	

38.	In evidence the defendant said that the cage he had noticed as having moved had done so by about one fifth of its length i.e. approximately 5mm.  This must be a reference to cage right L5/S1.  However, in an undated document at page 447 of the trial bundle to which the defendant did not refer in evidence but which was later asserted to have been prepared by him and in which he set out details of a review of the March and August x-rays, he records one L5/S1 cage as protruding about 1cm beyond the posterior vertical body.  I have no evidence of the circumstances in which or about the time at which this document was prepared but this measurement is consistent with the measurements of three of the four experts.
39.	The defendant’s reading of the August x-rays is also relevant to an assessment of what he read on the March x-rays.  Although the defendant noted in his clinical notes and stated to the claimant’s general practitioner (see letter of 10th August 2000) that the 7th August x-rays showed that one cage had moved (L4/5) his evidence, as set out in his witness statement (paragraph 20) was that he noted on x-ray that one of the cages at L4/5 and one of the cages at L5/S1 had shifted position.  In evidence in court, however, he said that the striking feature of the August x-ray was how far back the marker of the left L4/5 cage was.  He had no other x-ray image to make a comparison and therefore was hesitant about commenting on other cages until he had access to the March x-rays.  When he later made the comparison he saw that a second cage had shifted.
40.	It is submitted on the defendant’s behalf that the view expressed in the letter of 10th August was no more than an initial view and was subject to a later comparison of the March and August x-rays; the contents of the letter are, therefore, not inconsistent with the content of the defendant’s witness statement and evidence.  Moreover, I am asked to bear in mind paragraph 12 of the claimant’s witness statement which reads:
“An x-ray of my lumber spine was taken on 7th August and Mr Targett told me it was very clear that the plastic discs had moved and were protruding into my spinal column and causing the pain and numbness. (emphasis added)”
This account is reflected in that part of Mr Noordeen’s report in which he recounts the claimant’s history and in which he refers to the claimant’s being advised that the “plastic cages” had moved.
41.	The four experts examined the August x-rays and found that the cages were protruding as follows:
Table 2 – X-ray August 2000
	Claimant	Defendant	
	Dr Saifuddin	Mr Noordeen	Dr Wilson	Mr Morley	
Right L4/L5	4mm	7mm	6mm	4mm	
Left L4/L5	14mm	15mm	17mm	10mm	
Right L5/S1	13mm	17mm	11mm	5mm	
Left L5/S1	10mm	17mm	10mm	5mm	

42.	Both sets of experts therefore agree that the August x-rays revealed that all four cages had moved and I am left in no doubt that the defendant misread the August x-rays and that he noticed movement of only one cage.  I cannot accept his evidence that he at any stage prior to revision surgery noticed that a second cage had moved.  The claimant’s reference to “discs”, repeated in Mr Noordeen’s report, is no more than a layman’s interpretation of a doctor’s comment.  It was not until revision surgery that the defendant realised that more than one cage had moved. 
43.	Measurement of cage movement on an x-ray is not exact.  There would be a range of reasonable interpretations of the post-operative x-rays and the surgeon who carried out the procedure would be best placed to assess the degree of movement as he would know the position in which the cages had been placed.  However, although Messrs Noordeen and Morley disagree on the number of cages which were shown to have moved on the March x-rays they agree that the defendant should have recognised that more than one cage was displaced; Mr Noordeen says that the defendant should have recognised that three were displaced; Mr Morley that two were displaced.  Both would be highly critical of the defendant if he had failed to notice slippage of any cage.  Each orthopaedic expert was of the view that any slippage is a matter of clinical significance and failure to record the slippage in the notes would be substandard clinical practice.  Each would have informed the general practitioner of the slippage – Mr Noordeen because it is a matter of courtesy and common practice to involve general practitioners in the care of their patients; Mr Morley because not to do so would be substandard clinical practice.  They were also in agreement that a patient should be told, if slippage had been noted, of the signs and symptoms that the patient should look out for.  There is no suggestion that the defendant gave this claimant any such specific warning beyond the instructions the defendant said he gives his patients on discharge about activity, mobility, wound care and general emergency situations.  His stock phrase is “any problems get in touch with the hospital or me”.  Moreover, Messrs Noordeen and Morley are agreed that if slippage had been noted in March 2000 and a wait and see policy adopted, it would have been necessary to carefully monitor the position of the cages by repeat x-rays at the subsequent outpatient consultations.  The defendant’s practice, however, was, he said, not to repeat x-rays unless there was a significant clinical change.
44.	Mr Morley when commenting during his evidence about the suggestion that the defendant had failed to notice any slippage on the March x-rays said that he could not see that something which was plain on the x-rays could be missed by a respected and experienced surgeon.  Despite this comment, I am satisfied that the defendant failed to notice that any cage had prolapsed when he reviewed the March x-rays.  The defendant misread the March x-rays as he was later to misread those taken in August.  The absence of any note that cage slippage had been noticed is not merely a failure in the defendant’s record keeping.  I reject the defendant’s evidence that he noticed cage slippage in March 2000 and that he made a conscientious clinical decision to adopt a wait and see policy.  On these and other matters the defendant was an unsatisfactory witness who in order to avoid a conclusion that he failed to competently read the March x-rays has made up explanations for his subsequent clinical conduct and his usual practices which are not true.  In my judgment, had the defendant noticed slippage in March he would have noted the fact appropriately in the clinical notes, informed the claimant’s general practitioner, warned the claimant about what signs and symptoms to look out for and would not have told him, as I find he did, that everything looked fine on the x-rays.  Moreover, had he noticed slippage in March 2000 he would have ordered repeat x-rays.  The defendant’s failure to note slippage, to inform the general practitioner, warn the claimant and to order repeat x-rays – repeated failures which one would not expect from a respected and experienced surgeon like the defendant – are all explicable by the primary failure to competently interpret the x-rays of March 2000.
45.	I therefore find that in March 2000 the defendant failed to notice any slippage of cages when he reviewed the 16th March x-rays.
Had the defendant noticed on 17th March 2000 that cages had moved, what course would he have adopted?
46.	Had the defendant competently reviewed the x-rays of the 17th March he would have noticed that at least two cages had prolapsed.  In those circumstances, what would he have done?  The two possible courses open to him were to proceed immediately to early revision surgery or to adopt a wait and see policy.  The defendant said in evidence that had he seen on 17th March that more than one cage had prolapsed, he would not have decided to proceed to revision surgery.  He would have considered which cages had moved and by how much and borne in mind that some moved cages stabilise.  Had he noticed that three cages had moved he would have ordered repeat x-rays and possibly sought a second opinion.  He would, however, have given priority above all else to his clinical assessment of the claimant.  During the immediate post-operative period the claimant’s symptoms were consistent with the neuropraxia which patients suffer after this operation.  He regarded the claimant’s symptoms as improving while he was in hospital and in the absence of a deterioration saw no need for revision surgery at that time.
47.	I find the defendant’s evidence on these matters difficult to accept.  Having adopted the stance that he saw movement of one cage and decided to take a wait and see approach he has, I conclude, put himself in a position where in order to justify his approach to the claimant’s symptomology over subsequent months, he is driven to say that had he read the x-rays competently, his approach would have been the same.  The defendant’s giving priority to his clinical assessment over the findings on x-rays can lead to an illogicality; it requires a deterioration in the claimant’s condition with possible concomitant risk to the claimant’s wellbeing before the defendant embarks on revision surgery.
48.	Here one of the cages was protruding so much that it protruded to approximately the mid point of the spinal canal within which at this level is the cauda equina.  This was a possible cause of some of the claimant’s symptoms.  The defendant was aware that the earlier revision surgery is carried out the easier this difficult procedure is and the likelihood of adverse sequelae is less.  On the other hand, the longer revision surgery is delayed the greater the degree of fibrosis, which would plateau after about three months, and the greater the difficulty in retracting the muscle and nerve roots and reaching the cages which need to be replaced or repositioned.
49.	Both spinal surgery experts agreed that a “wait and see” approach would have accorded with the practice of a responsible body of spinal surgeons in practice in March 2000.  They also agreed that if a wait and see approach is adopted, there must be heightened vigilance and a careful monitoring of the patient’s condition with the use of x-rays.  Mr Morley was less supportive of early revision surgery than Mr Noordeen.  Mr Morley said that there is an increased risk of infection in revision surgery where metalwork is involved and that following the primary surgery the blood supply in the neural tissue is affected and time (7 – 10 days) should be allowed for the blood supply to re-establish itself.  The defendant did not refer to these matters as part of his reasoning for not proceeding to carry out early revision surgery but Mr Morley said that these matters would be known to a reasonably competent surgeon at that time and therefore, in my judgment, it is fair to factor these matters into my assessment of what the defendant’s decision making process would have been.
50.	The claimant argues that some indication of what the defendant’s approach would have been to revision surgery had he competently interpreted the x-rays can be obtained from his decision in August to carry out revision surgery when he believed, as I find he did, that one cage had moved.  There is some force in this argument but it has to be borne in mind that different factors prevailed in August; neuropraxia attributable to the operation would no longer be an adequate explanation of the claimant’s symptoms and there was by August evidence that the claimant’s symptoms had either reoccurred or deteriorated.  On the other hand, revision surgery in August was known to be more difficult and to involve greater risks than early revision surgery.
51.	If the defendant had competently read the March x-rays he would have had to carry out a risk benefit analysis of the options available to him.  Amongst the factors he would have considered are the claimant’s symptoms and clinical progress, the efficiency of the construct, the possibility of further movement, the risk of increased discomfort and/or clinical damage to the claimant, the desirability of carrying out any revision surgery sooner rather than later and the possibility that early revision surgery might jeopardise any improvement in the claimant’s condition.  I reject the defendant’s evidence that he would have adopted a wait and see policy.  He would, in my judgment on the balance of probabilities, have been driven to carry out early revision surgery – allowing adequate time for the blood supply to the neural tissue to re-establish.  This revision surgery would have been carried out in late March or early April.
Had revision surgery been carried out in late March or early April 2000, would the outcome have been different?
52.	In his letter dated 22nd September 2000 to the claimant’s general practitioner the defendant wrote of the revision surgery:
“It was a long and complicated operation involving considerable traction on the left L5 nerve route.  As a result he has a foot drop and altered sensation in the left leg.”
53.	Both spinal surgery experts agree that early revision surgery would have been easier and that the risk of foot drop would have been less.  They agree that revision surgery prior to the end of April 2000 would have avoided the foot drop.
Conclusion
54.	Had the defendant competently interpreted the March x-rays he would have proceeded to early revision surgery in late March or early April 2000 and the foot drop from which the claimant now suffers would on the balance of probabilities have been avoided.  Accordingly there will be judgment for the claimant in the agreed sum of £60,000.