Wrong-level spinal surgery leads to £117,000 compensation

15 December 2023

Dan* underwent an elective microdiscectomy procedure at an NHS hospital.

After the surgery, his surgeon advised that he had mistakenly operated on the incorrect spinal level. We were instructed to investigate the impact of this error.

The challenges Dan faced  

Before the surgery, Dan worked as a self-employed floor layer. One evening, Dan was exercising at the gym when he felt a sudden pain in his back. He saw his GP, who advised him to rest. A few weeks later, Dan resumed his normal activities and played football when he experienced severe pain in his lower back. This pain was more intense than the episode in the gym, with pain radiating down his left leg. Following a review at the hospital, Dan was diagnosed with a focal disc bulge at L5/S1 with S1 root compression. There were two options discussed: a steroid injection and surgery. Initially, Dan opted for the steroid injection, which was less invasive. Unfortunately, the injection only provided temporary pain relief and limited benefit. The lower back and left leg pain worsened, and eventually, Dan was advised to undergo a microdiscectomy procedure. A microdiscectomy aims to relieve the pressure on a patient’s nerve roots by removing small fragments of damaged (herniated) disc.

Following the operation and before being discharged from the hospital, the performing surgeon approached Dan to inform him that a surgical error had occurred during the procedure. The surgeon advised Dan that he had mistakenly operated at the L4/5 level, not the L5/S1 level as intended. The surgeon proceeded to perform the decompression of the nerves at the L4/L5 level before realising that Dan’s disc space appeared relatively normal; there were no loose disc fragments to retrieve. Once the mistake was realised, a consultant surgeon was called in to confirm the error and decide how to proceed. It was agreed that the performing surgeon should proceed to operate at the correct level below.

Subsequently, the L5/S1 nerve was decompressed, the disc prolapse located, and a large loose fragment was retrieved from the disc space as had been intended. In a subsequent letter written to Dan, the surgeon acknowledged that in the long term, there is a potential increased risk of degeneration in the disc space, which was wrongly cut and entered.

A week after the surgery, Dan noted that his pain had disappeared entirely. However, six weeks later, Dan’s pain had returned to pre-operative levels. At subsequent consultations, Dan reported that if he sat down for more than 30 minutes, he would experience severe pain upon standing. Unfortunately, Dan was informed by a consultant that he had very few options moving forward as further surgical treatment was out of the question.

Dan was suffering with significant pain and discomfort in his lower spine, which was not present pre-surgery. He would take prescribed pain relief medication up to three times a day to help ease his pain, but this did not give him long-term relief. Dan was understandably concerned about the surgical error and the risk of future degeneration in the disc space, which was incorrectly operated on. This worry was amplified by Dan’s concern that he could not continue his work as a floor layer, which is a hands-on physical job.

How we made a positive impact in Dan’s case 

Jenny Tetlow, a senior associate in the clinical negligence team, was committed to helping Dan win the case. After reviewing the medical records and imaging and taking a detailed witness statement from Dan, Jenny sent an early letter of notification to the hospital, inviting them to make an early admission of liability. However, the challenge in this case was establishing causation. Although it was admitted that the surgeon in question had breached his duty of care towards Dan by performing a decompression at the incorrect level, it was not accepted that Dan had suffered any harm as a result. In particular, the hospital argued that on the balance of probabilities, the surgical error would not cause any further degeneration over and above that which Dan would have experienced in his lifetime.

Jenny obtained evidence from a consultant spine surgeon who supported our contention that Dan would suffer avoidable accelerated degenerative changes at the L4/5 disc space as a result of the wrong-level surgery. 

This was key as it meant that we could assist Dan in pursuing a claim for his future loss of earnings. It was successfully argued that due to the negligent surgery, Dan will have to retire from work as a floor layer up to 10 years earlier than he would have done if the surgical error had not occurred. We were able to project Dan’s likely earnings as a floor layer and compare this to what he would earn in an office-based job that does not require strenuous labour. Dan would earn significantly less in an office-based job than he would as a floor layer.

Although causation remained in dispute throughout, we reached a settlement for Dan of £177,000, which compensated him for his pain, suffering and loss of amenity and for his future loss of earnings.

*not his real name.

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