De Freitas v O’Brien [1995] EWCA Civ 28 (02 February 1995)

Mrs De Freitas sued Mr O'Brien, a spinal surgeon, for negligence after a second back operation caused her permanent disability. The Court of Appeal upheld the trial judge's finding that a small body of specialist spinal surgeons could constitute a responsible body of medical opinion under the Bolam test, and that the decision to operate was not negligent.

Facts

The plaintiff, Mrs Patricia De Freitas, suffered severe back pain following an anterior lumbar fusion performed by the first defendant, Mr John O’Brien, a consultant orthopaedic surgeon specialising in spinal surgery. When her condition deteriorated with new patterns of pain, Mr O’Brien performed a second operation on 26 August 1988 to explore potential nerve root compression. This second operation was unsuccessful, leading to deep wound infection, leakage of cerebro-spinal fluid, and the plaintiff developing chronic arachnoiditis, leaving her with permanent disability and crippling pain.

The Claim

The plaintiff alleged that Mr O’Brien was negligent in undertaking the second surgery without sufficient radiological or clinical evidence to justify the operation. She withdrew allegations regarding the first operation and conceded claims about mismanagement of the CSF leak.

Issues

The central issue was whether the first defendant’s decision to perform the second operation on 26 August 1988 was negligent, specifically whether any responsible body of medical opinion would have approved such surgery in the absence of clear neurological signs of nerve root compression.

Judgment

The Court of Appeal dismissed the appeal. Lord Justice Otton, giving the lead judgment, held that the trial judge had correctly applied the Bolam test and was entitled to find that a responsible body of medical opinion supported the decision to operate.

Application of the Bolam Test

The Court considered whether the small number of spinal surgeons (approximately eleven practitioners in the country) could constitute a responsible body of medical opinion. Lord Justice Otton held:

“I do not consider the learned judge fell into error in not considering whether the body of spinal surgeons had to be substantial. It was sufficient if he was satisfied that there was a responsible body.”

The Court endorsed the trial judge’s finding that spinal surgeons formed a separate specialism, and that expert witnesses Mr Findlay and Mr Webb, both highly qualified spinal surgeons, represented a fair sample of that specialism.

Expert Evidence

The defence experts testified that given the altered pattern of pain following the first operation and the logical inference of possible nerve root compression, surgery was not merely reasonable but mandatory. The trial judge accepted their evidence that:

“The possibility that there might be an unresolved nerve root compression was potentially too damaging to leave and in consequence the defendant had no alternative but to explore it by an operation.”

Falsification of Notes

While the trial judge made adverse findings regarding the defendant’s post-operative notes, finding they had been deliberately falsified, the Court of Appeal held this did not affect the key issue of whether the pre-operative decision to perform surgery was justified.

Implications

This case is significant for clarifying that under the Bolam test, a responsible body of medical opinion need not be numerically substantial. A small group of specialists in a particular field can constitute a responsible body if they possess the relevant expertise. The case confirms that the burden of proof remains on the plaintiff to show that no responsible body would have approved the treatment, rather than requiring the defendant to prove substantial support for their actions. The decision also affirms that tertiary specialists may be judged by the standards of their particular specialism rather than the broader medical profession.

Verdict: Appeal dismissed. The trial judge’s finding that the first defendant was not negligent in deciding to perform the second operation was upheld. The respondent was awarded costs.

Source: De Freitas v O’Brien [1995] EWCA Civ 28 (02 February 1995)