At the age of 15, a young man fell off a wall and hurt his neck. He was taken to the Accident and Emergency Department of a major hospital with neck pain, and X-rays were taken of his cervical spine.

These were reported by a Radiologist as being inadequate, in that they did not show the very top of the spine (DENS) or the bottom (C7/T1). However, no further action was taken, and the GP was informed that there was no abnormality on the X-ray.

He continued to have a lot of pain in his neck and, two years later, was involved in a road traffic accident. X-rays were taken of the whole cervical spine, revealing an old fracture of C7, and that the vertebra had slightly slipped back into the spinal canal, where it had healed. The young man sought the advice of a solicitor in relation to the possibility of medical negligence because of the missed fracture.

It was clear there was a breach of the duty of care by hospital staff. However, the main question was in relation to consequential or “but for” damage. A Consultant Neurosurgeon was asked for his opinion. He was not used to doing medico-legal work and, in fact, wrote a clinical report detailing the present symptoms but not discussing the pertinent issues which were:

• Had the patient been presented to him on the day of the incident, what management would he have initiated both then and over the next couple of years?
• On the balance of probabilities, what difference would have occurred to the level of symptomatology had the treatment been carried out?

It was of note in this case that, following the road traffic accident, the plaintiff was found to have a good range of movements in the neck and only “mild” pain at the extremes of range, with no evidence of any abnormal neurology in the limbs.

This case indicates the necessity for a preliminary screening report, concentrating on the golden triad of duty, breach and consequential damage, from a professional expert with a detailed knowledge of the legal process. Had this been requested initially, clear guidance would have been provided to the legal team in relation to the specific questions required to be answered by their Neurosurgical or Spinal Orthopaedic Expert, who may be experts in their field but not in the legal requirements of the Court process.

MDU figures for 2021 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email [email protected]