In the decision Espinos v Popovic published by Judge Braddock on 8 August 2018, the run of successes by plaintiffs in  medical negligence claims continued.  Her Honour awarded damages to Mr Espinos in his claim against deceased neurosurgeon, Emile Popovic, in the sum of $4,817,311.

These are very high damages for a claim for negligent care surrounding a spinal fusion operation for a 55-year-old self-employed man, who, it was conceded, was appropriately advised to undergo a fusion at L5/S1.

The case provides an interesting and helpful summary of technical aspects of performing low back spinal fusion surgery, a common source of complaint and medical negligence claim.

Her Honour was obviously impressed with evidence given by local neurosurgeon, Andrew Miles, concerning appropriate technique intraoperatively and concerning the recurrent issue of malpositioned pedicle screws.

The case is a bitter reminder of the harm that can be caused by malpositioning of such a screw, even for a relatively short period of time.  In this case, it was ‘only’ 9 days before Dr Popovic repositioned the relevant S1 level screw.  Nonetheless, during such 9 days, it caused damage to Mr Espinos’ nerve causing permanent debilitating right leg pain which persisted even after such screw was repositioned.

The unhappy story for Dr Popovic was made worse by the fact that his initial surgery mistakenly fused the L4/5 level and stabilised the L3 level above.  This was performed despite it being clear the plan, and Mr Espinos’ consent, had been to a fusion at L5/S1.  Not surprisingly, it was admitted that Dr Popovic was negligent in operating at the incorrect level.  It was however denied that such initial surgery had contributed to Mr Espinos’ long-term poor outcome.

The most interesting aspect of the case from my perspective was Dr Miles’ evidence concerning the measures that should be taken intraoperatively and post operatively to avoid a malpositioned pedicle screw.

Her Honour rejected the commonly run argument that malpositioning of a screw is an accepted complication of such surgery and can occur even in the best of hands.  This was rejected because it was accepted that incorrect positioning could occur, but should be appreciated and rectified intraoperatively, particularly given the availability of modern 3D imaging in theatre at the relevant hospital (the Mount) and in any event, very shortly thereafter via appropriate post-operative imaging. 

This goes further than most cases – in which an initial failure to appreciate a malpositioned screw has been accepted as an unfortunate, but not negligent error.

In relation to Dr Miles’ evidence, see, for example, his clear explanation at paragraph 91 concerning the cause for damage to the relevant nerve if a screw is malpositioned in the nerve canal.  Further, in relation to the appropriate intraoperative steps to avoid a malpositioned pedicle screw, see at paragraphs 96 – 99.  He stated: “it is fairly obvious if a screw is badly malpositioned on intraoperative imaging, particularly 3D intraoperative imaging.

In relation to the benefits from intraoperative imaging, the defence neurosurgeon Mr Rogers, quoted at paragraph 128, accepted that the risk of screw malpositioning using traditional intraoperative image guidance varied from 1.6% to 6.4%.  He accepted with that with intraoperative CT imaging the result should be a return to theatre of 0%.

Also importantly, Dr Miles’ view, which Her Honour accepted, was that it was not sufficient, as the defence claimed, for a neurosurgeon to rely upon the assessment of post-operative imaging by the radiologist.  Such radiologist had not reported the malpositioning of the S1 pedicle screw, despite it being clear.

The surgeon was obligated to review the imaging first-hand and to make their own assessment and conclusions concerning the relevant screw’s positioning, et cetera.

Interestingly, it seems no contribution claim had been brought by Dr Popovic against the relevant radiologist for their failure to report the malpositioned L5/S1 pedicle screw.  The absence of such a claim perhaps indicated an acceptance of the attitude expressed by Dr Miles, that a neurosurgeon has primary responsibility to review the relevant imaging in any event, and it was a poor excuse to assert the radiologist’s failure to mention malpositioning had caused a failure to act more quickly.

Nonetheless, given Her Honour’s finding, a contribution would probably have been found against the radiologist, had such claim been made (because had they reported accurately, this would have ‘caught’ Dr Popovic’s error of either not reviewing or in missing the malpositioned screw).

All in all, a favourable decision from the patient’s perspective + confirmation this type of neurosurgical adverse outcome are (and should be) hard to defend.