[2013] CSOH 35



in the cause







Pursuer: Hofford QC, McKenzie; HBM Sayers

Defenders: Ferguson QC, McSporran; Central Legal Office

1 March 2013


[1] The pursuer is Alexander Glancy. He is 60 years old and married with a grown-up daughter. Until 1991 he was employed as a maintenance electrician with Kvaerner Shipbuilding. He gave up work for health reasons and has not worked since then.

[2] Towards the end of 1991 Mr Glancy attended his general practitioner complaining of pain in his neck and upper arm. This was the start of a chain of events which culminated in an operation at the Southern General Hospital in 1994. As a result of that operation Mr Glancy was left with what has been described as incomplete tetrapleagia.

[3] The pursuer claims that his present condition has come about as a result of the fault and negligence of the consultant neurosurgeon, Mr Robin Johnston, who was at that time employed by the defenders.

[4] Damages have been agreed in two joint minutes. They total £910,000 inclusive of interest to 9 October 2012; thereafter interest to run on £375,000 at 4 per centum per annum. Paragraph 19 of the first joint minute provides:

"19. That in the event the pursuer established liability against the defenders in the current action, the sums to be awarded by the court in respect of (a) solatium is £150,000 together with interest of £50,000 to the date of proof (9 October 2012); thereafter interest will run at 4% per annum on one half of the solatium award; (b) past wage loss, net of all CRU benefits but including interest to the date of proof is £250,000; thereafter interest will run at 4% per annum on one half of that sum; (c) future wage loss is £50,000; and (d) section 9 services, past and future, inclusive of interest is £60,000."

The second joint minute provided that in the event of liability being established the total sum of £350,000 inclusive of interest:

"shall be awarded by the Court in respect of the remaining heads of claim, namely (i) section 8 necessary services, past and future; (ii) out of pocket expenses, past and future; and (iii) the provision of alternative accommodation; and that interest shall run on £175,000 at 4% per annum from 9 October 2012."

Accordingly the issue in the proof is one of liability.


[5] Mr Glancy was initially referred by his general practitioner to Dr Denis Pitkeathly, a consultant physician who examined him in December 1991. He noted that Mr Glancy was having severe pain on the left side of the neck and upper arm. This was accompanied by paraesthesia, mainly in the left forearm and hand. Examination revealed impairment of sensation of the C6 nerve route. X-ray of the cervical spine showed a reversal of the normal lordosis attributed to muscle spasm. The clinical picture suggested nerve route compression. Dr Pitckeathly in turn asked Mr Robin Johnston to examine Mr Glancy. Mr Johnston saw Mr Glancy at his out-patient clinic on 30 March 1992. He noted Mr Glancy's description of left sided pre-axial pain in the thumb region since May of the preceding year. There had not been much change to this although early numbness had now been replaced by pain and he experienced paraesthesia along the dorsal surface of his hand. The pain was continuous and impulse positive. Examination revealed reduced power in the left arm. Mr Johnston thought this probably related to root pain. There was diminished sensation along the pre-axial border of his arm and his reflexes were generally diminished. Mr Johnston concluded, in a letter to Dr Pitkeathly, that Mr Glancy gave a good history of a left C6 radiculopathy which he thought needed further investigation and probably surgical treatment which he would arrange.

[6] Mr Glancy was admitted to the Southern General Hospital in Glasgow for further investigation in July 1992. He had a full length myelogram. The note of the myelogram records an anterior indentation of the theca but it showed no significant cord compression. It also showed spondylosis was present and compressing both the C5 and C6 nerve routes, particularly the latter. Mr Johnston noted that his pain fell clearly in the distribution of C6. On 30 July 1992 a posterior micro-foraminotomy was performed. He was discharged on 1 August 1992.

[7] Mr Glancy was then seen as an out-patient on 9 November 1992. Mr Chumas, the senior neurological registrar, noted that Mr Glancy had been completely relieved of his left sided brachialgia some two weeks after the operation. However following a sneezing episode the pain had recurred and gradually increased in discomfort. Although the pain in the neck itself had been cured the discomfort was virtually back to his pre-operative level. It was hoped that the pain would be self-limiting. However Mr Chumas suggested that it might be that an anterior procedure would be required in the future to control the pain. Arrangements were made for Mr Glancy to be seen again in 3 months' time.

[8] In evidence Mr Glancy said that he could not recall any relief from the pain following from this first operation.

[9] Mr Chumas saw Mr Glancy again in the out-patient clinic on 1 February 1993. He noted that Mr Glancy remained no better and was still complaining of considerable pain down the left arm. In addition he had developed a small amount of pain in the right side in the thumb and index finger. Mr Glancy had told him that he had started dropping things from his left hand. In Mr Chumas' letter of 8 February 1993 to Dr Pitt, he said that on examination there were no new findings but that Mr Glancy would need to be re-admitted for further investigation and consideration of an anterior operation. Mr Glancy was re-admitted to the Southern General Hospital on 19 April 1993 and the following day had an anterior cervical discectomy at the C5/6. He was discharged on 22 April. In his discharge summary Mr Johnston records that Mr Glancy was re-admitted because of persisting recurrent pain in the left arm along the pre-axial border. He had made a satisfactory recovery from the previous operation with good initial relief of his pain but that it had recurred towards the end of 1992 and not resolved since then. On this occasion Mr Johnston had discussed with Mr Glancy the merits of a further, and this time anterior exploration. He had indicated to Mr Glancy that this would have a reasonably good chance of relieving his left arm pain which remained his only significant symptom. Following the operation he had once again had very good early relief of his arm pain. Mr Johnston hoped that this would be much more prolonged than on the last occasion. There would be a follow up at his clinic in three months' time.

[10] On 24 May 1993 Dr Pitt, requested that Mr Johnston see Mr Glancy sooner than the scheduled appointment on 27 July. He said that Mr Glancy had had a C5/6 discectomy and fusion on 20 April but was having considerable pain and stiffness in the neck once more. Dr Pitt was in error in saying that the operation on 20 April had included a fusion.

[11] Mr Glancy was seen in the out-patient clinic on 28 June by Mr Garth Cruickshank, another senior neurological registrar. He noted that Mr Glancy had had two operations. The first had produced an initially good response but was associated with some neck pain and some persistence of symptoms. He had undergone a second operation to relieve persisting left arm pain. This operation had been very successful in doing this. However Mr Cruickshank noted that his persisting central neck pain had become more pronounced and was beginning to affect his performance. On examination Mr Glancy held his neck very still and had a limited range of neck movement which exacerbated his central neck pain. He was tender over the upper margin of his foraminotmy although there did not appear to be any radiation into his arm or shoulders. He was noted to have considerable spasm associated with the neck. Neurological examination of his arms and in particular his legs was indeed normal with a normal reflex pattern. Mr Cruickshank did not consider that there was a major problem but Mr Glancy was quite clearly suffering a great deal of central neck pain with muscle spasm. Mr Cruickshank arranged for Mr Glancy to have a series of x-rays to exclude any obvious abnormality. The x-rays were taken the following day, 29 June. The radiologist, Dr E Teasdale noted that there was reduction in the C5/6 disc space consistent with the previous surgery. No movement occurred at that level during flexion and tension and there was limited movement above this. There was no evidence to suggest local infection and the bones were otherwise normal.

[12] On 13 July Mr Johnston wrote to Dr Pitt having reviewed the x-rays. He said that the x-rays showed no evidence of subfluxation, infection or any other lesion. The disc space had naturally collapsed since his intervertebral disc had been removed.

[13] Mr Glancy was seen again by Mr Johnston in his out-patient clinic on 1 November 1993. He noted that his cervical pain persisted and had not significantly changed since he last saw him. In his letter to Dr Pitt dated 4 November Mr Johnston said that Mr Glancy was one of the small group of patients who developed cervical spine pain following decompression surgery without fusion. In his experience this group comprised a small percentage of the patients who have this surgery and it virtually always resolved spontaneously. He had advised Mr Glancy of this and that if it did not recover in the next few months consideration should be given to a fixation and fusion if necessary.

[14] Mr Glancy was seen again in out-patients on 18 April 1994 this time by a Mr Pete Mathew, another senior neurosurgical registrar. He noted that his cervical pain persisted and was in fact a little worse since he had been last seen at the clinic. The character of the pain was constant radiating into the shoulder and upper arm, consistent with the referral pain from the cervical spine. He had arranged for Mr Glancy to be admitted in the near future for further investigation procedures.

Operations on 12 and 13 July 1994

[15] Mr Glancy was admitted to the Southern General Hospital in Glasgow on 11 July 1994. Following admission he was seen by Mr Johnston. He recorded that the cervical pain was probably related to the previous micro- foraminotomy and discectomy. Although there was no significant movement in the flexion and extension views Mr Johnston considered that the pain may be pain of instability. He went on to record in the clinical notes made at the time that this was a clinical diagnosis and that Mr Glancy was aware of that. He recorded that he considered that fixation offered at most a 75% chance of success. Posterior fixation was safer and just as likely to succeed as an anterior operation. The conclusion was for a lateral mass plate fixation and graft at C5/6.

[16] Following this examination Mr Glancy spoke to his wife at visiting time and signed a consent form although in evidence Mr Glancy had no recollection of signing the form.

[17] The following afternoon at about 3 pm Mr Glancy was taken into the operating theatre for his operation. He was placed face down on the operating table and positioned on it by the registrar, Mr Ching. His head was minimally flexed forward for a posterior exposure. There were two possible methods of fixation available; either a lateral mass plate which Mr Johnston had referred to in his clinical note or a Halifax clamp. Both were available in theatre for possible use. Mr Johnston decided to use a Halifax clamp as he considered that in the circumstances this would be easier and more straightforward.

[18] A Halifax clamp is a method of fixing two bones of the vertebrae together in order to encourage fusion. One clamp is hooked over the top vertebral lamina and the bottom vertebral lamina of the other. A screw between them is tightened bringing the two parts of the clamp together. A bone graft is placed in the space between the bones to aid and encourage fusion. The Spinal Unit at the Southern General Hospital was the first in the United Kingdom to use Halifax clamps. However they are no longer in use having given way to more advanced methods of fixation.

[19] The operation was straightforward and the Halifax clamps were affixed as intended. However during the operation there was a significant drop in Mr Glancy's blood pressure to 84/40. Nothing was apparently thought of this at the time as it is not uncommon for there to be a drop in blood pressure during such an operation. It is possible that this may have had a part to play in the damage that was caused during the operation. It is also possible that it recorded some other event which was significant in the damage. I return to this matter later.

[20] In evidence Mr Glancy said that he recalled having a discussion with Mr Johnston about the operation in the ward immediately prior to it. His next memory is coming round in the recovery room and being unable to move. He said to the anaesthetist that he could not move and was told that it was as a result of the anaesthetics. He said that he felt funny in his upper body. He could move his head but not his legs. He could not feel anything below about one and a half inches below his shoulder.

[21] A post-operative review was carried out four hours after surgery. It noted that Mr Glancy was orientated and obeying commands. An assessment of his power at that time showed a measure of 3/5 for bilateral proximate movements and 0-1/5 for distal movements in the upper limbs. There was no power in the lower limbs.

[22] A myelogram was carried out by Dr Jim Devin, consultant radiologist in Mr Johnston's presence. It showed a complete obstruction to the cranial flow of the contrast column at the level of the lower border of the Halifax clamp.

[23] At 23.45 pm that night Mr Johnston recorded that Mr Glancy had a mid-lower cervical quadriplegia with minimal movement in his hands. He noted the obstruction seen on the myelogram suggested that there may be an extra dural haemorrhage associated with the clamp insertion but otherwise he did not understand how the cord compromise had occurred. The whole procedure had been entirely straightforward and uneventful.

[24] Mr Johnston spoke to Mr Glancy and, on the telephone, to his wife. He obtained consent for a further operation for the removal of the clamp which he described in his note as the obvious next step.

[25] Sometime after midnight on 13 July Mr Glancy returned to theatre. The operational wound from the previous operation was reopened. The clamp was removed along with the graft. Mr Johnston noted that there was no sign of an extra dural haemorrhage.

[26] Since the operation Mr Glancy has made some recovery. However as described above Mr Glancy remains with incomplete tetrapleagia.

Grounds of fault

[27] The pursuer avers three breaches of the duty of care owed by Mr Johnston to him. First, it is said Mr Johnston failed to warn Mr Glancy of the significant risk of paralysis and tetrapleagia. Secondly, Mr Johnston failed to carry out proper investigations before proceeding with the posterior fixation and fusion of the cervical spine. The investigations he should have carried out were either a myelogram or an MRI (magnetic resonance imaging) scan. Thirdly in the fourth operation in the early hours of 12 July Mr Johnston, it is said, failed to carry out a laminectomy to decompress the spinal cord at C3/4 and C4/5 level and failed to explore Mr Glancy's cervical spine between C3-5 to establish whether the spinal cord was compressed and whether there was an extra dural haematoma laterally or anteriorly.

[28] At the start of the proof there was a fourth case on Record. It was to the effect that, not having carried out an up to date x-ray and/or temporary external immobilisation and further a myelogram or an MRI scan, Mr Johnston ought to have carried out a different operation namely an anterior C3/4 and C4/5 discectomy, three level decompression (C3/4, C4/5 and C5/6) and two level fusion (C3/4 and C4/5). However this case was no longer insisted upon in the light of the evidence of Mr Nath, the pursuer's expert.

The Law

[29] Parties were agreed that in order for the pursuer to succeed he must prove that the actions of Mr Johnston fell below the standard reasonably to be expected of the ordinary competent neurosurgeon exercising ordinary skill and care. The actions must be shown to exhibit such failures of which no consultant neurosurgeon of ordinary skill would be guilty if acting with ordinary care.

[30] The classic statement of the law in Scotland is contained in the opinion of Lord President (Clyde) in Hunter v Hanley 1955 SC 200 at page 205 where he said:

"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of other professional men. ...The true test for establishing negligence and diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care..."

[31] So far as the resolution of conflicting expert evidence parties were agreed that a convenient and accurate synopsis of the law is to be found in the Opinion of Lord Hodge in the case of Dinelely v Lothian Health Board 2007 CSOH 154. His approach was adopted by Lord Menzies in Campbell v Borders Health Board 2011 CSOH 73 and by Lord Tyre in Hannigan v Lanarkshire Acute Hospital NHS Trust 2012 CSOH 152, at paragraph 34. I too find that to be a convenient synopsis of the law and I gratefully adopt his approach.

"[36] Parties were agreed as to the approach of the law where there was conflicting expert testimony on what was acceptable medical practice. I was referred to the leading cases of Hunter v Hanley 1955 SC 200, Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and Bolitho v City and Hackney Health Authority [1998] AC 232. I was also referred to Lord Reed's opinion in McConnell v Ayrshire and Arran Health Board 14 February 2001 (unreported) and to my opinions in Honisz v Lothian Health Board [2006] CSOH 24 and Scott v Lothian University Hospitals NHS Trust [2006] CSOH 92. In relation to the way in which the court should assess the evidence of expert witnesses I was referred to the judgment of Stuart Smith LJ in Loveday v Renton [1989] 1 Med LR 117 at 125.

[37] As parties had agreed that my opinion in Honisz was an accurate summary of the relevant law where there was a conflict between experts on acceptable medical practice, I refer to what I said in that case:

"[39] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at p.639F-G). Secondly, however, the court does not defer to the opinions of the relevant professionals to the extent that, if a defender lead [sic] evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson at pp.241G-242F, 243A-E). Where a judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgment. Thus it will normally require compelling expert evidence to demonstrate that an opinion held by another medical expert is one which that other expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of Hunter v Hanley...As Lord Brown-Wilkinson said in Bolitho (at p.243D-E), 'it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed.'

[40] An example of such a rare case is that of Hucks v Cole [1993] 4 Med L R 393, which Lord Browne-Wilkinson discussed in Bolitho. In that case a general practitioner failed to give penicillin to a lady in a maternity ward who had a septic spot and as a result she developed fulminating septicaemia. The defendant knowingly took the risk that the lady could develop puerperal fever because the risk was small and he was supported in his decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the Court of Appeal upheld his decision, Sachs LJ holding that there was a lacuna in professional practice and that the defendant knowingly took an easily avoidable risk which elementary training had instructed him to avoid. As, in the court's judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk.'

[38] In McConnell (at paragraph 29) Lord Reed similarly stated that where there were conflicting bodies of evidence from credible and reliable experts of appropriate professional standing the pursuer could succeed "only if the opinion supportive of the treatment [could] be demonstrated to be untenable, for example because it [was] based on a mistaken or incomplete understanding of the relevant facts or [had] no logical basis".

[39] Stuart Smith LJ in Loveday set out (at p.125) the following approach t6o the evidence of expert witnesses (in the context of a dispute about causation):

"The mere expression of opinion or belief by a witness, however eminent...cannot suffice. The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness's opinion by examining the internal consistency and logic of his evidence; the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to a searching and informed cross-examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct; the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence."

Stuart Smith LJ went on to say that the demeanour of a witness in the witness-box could be important when the court was evaluating expert evidence, particularly if a witness had been criticised for bias or lack of independence.

[40] Thus, using the forensic tools described by Stuart Smith LJ and having regard to the evidence as a whole, the court has to assess at least three things where there is conflicting expert evidence on the propriety of a course of action adopted by a medical practitioner. First, the judge must consider whether an expert has reached his or her view on a mistaken or incomplete understanding of the relevant facts of the particular case. Secondly, the judge must examine whether there has been a proper assessment of the risks and benefits of the course of action which was adopted compared with another course of action advocated by the pursuer. Thirdly, and more generally, the court must satisfy itself whether or not there is a logical basis for the opinion supporting the course of action which was adopted."

[32] In this case there has been a sharp conflict of expert evidence. In assessing that evidence it appears to me that I require to consider whether the expert's opinion has been reached on a mistaken or incomplete understanding of the relevant facts, whether there has been a proper assessment of the risks and benefits of the course of action which was adopted compared with another course of action and more generally whether or not there is a logical basis for the opinion supporting the course of action which was adopted.

[33] The defenders led an expert, Professor Ciaran Bolger. It seems to me that provided I am satisfied that Professor Bulger reached his opinion on a proper understanding of the relevant facts of the case and that there has been a proper assessment of the risks and benefits of the course of action adopted by Mr Johnston compared with another course of action advocated by the pursuer, then in order to find that Mr Johnston was negligent, I would have to find compelling evidence that his approach was untenable, not reasonable or responsible or lacking a logical basis.

The main witnesses, including experts

[34] Mr Robin Johnston graduated in medicine from The Queen's University Belfast in 1974 and thereafter held various posts in Northern Ireland. He commenced full time training in neurosurgery in August 1978. He held a research fellowship in neurosurgery for one year at the University of Dallas, Texas. He was a senior registrar at the Royal Victoria Hospital in Belfast in neurosurgery from 1981 to 1983. In 1985 he became a consultant neurosurgeon at the Institute of Neurological Sciences in Glasgow. He retired from clinical practice in April 2009 but continues to teach clinical practice. His interest in spinal neurosurgery commenced in 1982. He was instrumental in the founding of the National Spinal Injuries Unit in Glasgow in 1992 and was involved in the early planning of that. Together with an orthopaedic surgeon, Mr Allan, he was responsible for all vertebral stabilisation procedures until 2004 when a neurosurgical colleague started to share the cervical base with him. From 2005 to 2008 he was president of the British Cervical Spine Society. He has written extensively both as an individual and in collaboration with others and presented papers at numerous academic conferences. He has been an examiner and latterly an assessor in inter-collegiate examination in neurosurgery. He has made a very substantial contribution to spinal neurosurgery and to the treatment of spinal injuries in Scotland.

[35] Mr Nath, the pursuer's expert, described him as a careful, caring, knowledgeable and very skilful surgeon. Professor Robin Sellar said that he was a highly experienced surgeon.

[36] I formed the impression that Mr Johnston was a highly professional and very caring medical practitioner. He was obviously deeply conscious that the operation which he had performed had resulted in devastating consequences for Mr Glancy. There is no doubt that he felt responsible for what had happened and concerned that he could not account for the injury that Mr Glancy had sustained. He clearly empathised with Mr Glancy. Mr Glancy gave evidence in which he said that in one of the conversations in the days after the operation he had formed the impression that Mr Johnston was crying. Mr Johnston said that did not happen and that it would be unprofessional. Nevertheless I did form the impression that he was distressed by what had happened.

[37] Mr Frederick Nath was the pursuer's main expert. He is a consultant in the department of neurosurgery at Middlesbrough General Hospital. He is a graduate of the Liverpool University Medical School and has held positions in Liverpool, Aberdeen, Edinburgh and as a senior registrar at the Southern General Hospital in Glasgow. Until 2007 he was a consultant to the North of England Spinal Injuries Unit. He has very extensive experience in spinal surgery. He also has extensive experience of the writing of reports for litigation although it is almost exclusively personal injury work rather than professional negligence. He too has written extensively on topics related to spinal injuries and presented papers to conferences.

[38] I accept that Mr Nath is a highly experienced consultant neurosurgeon with an excellent reputation. Nothing I say should detract from that general observation. However there were three significant issues which in my view reflected on the quality of his opinion evidence. Cumulatively they made me consider him less reliable as an expert witness than Professor Ciaran Bolger, the defenders expert or for that matter Mr Johnston.

[39] The first issue relates to a factual matter. The pursuer's case was that the cause of Mr Glancy's incomplete tetrapleagia was likely to have been a combination of spinal cord compression and a drop in blood pressure during the operation. The cord compression came about, on the pursuer's case, as a result of Mr Glancy being positioned faced down on the operating table with his head flexed forward. Accordingly a critical fact was whether Mr Glancy's head was flexed forward and, if so, to what extent.

[40] Mr Glancy was placed on the operating table and his head positioned by Mr Ching the senior registrar. The evidence that Mr Glancy's head was flexed forward came from his note. This referred to Mr Glancy being positioned "with a slight degree of flexion". That was the only evidence available to Mr Nath on this issue. Yet in his report he said that Mr Glancy's head had been "as flexed as possible." In evidence he was unable to say where this phrase came from or on the basis the statement was made.

[41] The error also worked its way through to Professor Sellar's report. He said that the high signal on the MRI scan post-operatively was most likely to be due to ischaemia (lack of oxygen) probably due to focal compression at the time of surgery and that this in turn was due to patient positioning with the head maximally flexed. In evidence Professor Sellar said that he did not see the clinical note but relied on Mr Nath's opinion for that expression.

[42] Factual errors are bound to creep in to even the most careful of reports. However this particular fact was of significant importance to the pursuer's hypothesis of the mechanism of damage. It is suggestive of the facts being perceived in a way which fits a preconceived hypothesis.

[43] The second matter which gave me concern related to a part of the pursuer's case which was departed from after Mr Nath's evidence.

[44] The case on Record included one that Mr Johnston should have considered alternative surgery. This was specified to be an anterior C3/4 and C4/5 discectomy, three level compression (C3/4, C4/5 and C5/6) and two level fusion (C3/4 and C4/5). This would, it was said, remove the pressure on the pursuer's spine and relieve most if not all of the pursuer's neck pain and symptoms. It was likely that had Mr Johnston carried out this surgery the pursuer averred he would have been fit to return to light or semi-sedentary work. This case was abandoned following Mr Nath's evidence. However in my opinion the genesis of this proposal and its inclusion in the pursuer's case is relevant to the consideration of Mr Nath's evidence.

[45] It should be recalled that the first case pled against Mr Nath is that he neglected to carry out either a myelogram or an MRI scan before reaching the diagnosis that the cervical pain was probably related to the previous foraminotomy and discectomy. In doing so it is said he failed to consider other likely causes such as C3/4 disc prolapse.

[46] It does therefore seem odd that having criticised Mr Johnston for failing to carry out a myelogram and a MRI scan before reaching a diagnosis and proposing a C5/C6 fixation, Mr Nath apparently felt confident enough to propose a far more extensive surgery without the benefit of such imaging.

[47] However the problem for Mr Nath does not rest there. As Mr Ferguson pointed out in a report dated 2003 Mr Nath merely suggested that Mr Johnston ought to have considered different surgery without specification. The pursuer's case on Record until it was amended on the first day of the proof was that a consultant exercising ordinary skill would have considered C3/4 and C4/5 discectomy and decompression. The final position was only reached with the amendment allowed on the first day of proof.

[48] The Record having been amended to put in the more extensive alternative surgery it was a surprise when in evidence in chief Mr Nath said that he would not wish to give the impression that he would do that operation. He would need to be really pushed to do so. It would be the correct operation only if the pain was very severe and symptomatic. Surgery would be a last resort. In cross examination Mr Nath said that his first course of action would be conservative measures, ie not involving surgery. It is significant that there is no mention of conservative measures on Record. Mr Nath was asked why that was not suggested in the pleadings and he replied that it was the obvious thing to do.

[49] The alternative surgery case was put to Mr Johnston by Mr Hofford who led him as one of his witnesses before leading Mr Nath. Accordingly Mr Johnston had an opportunity of commenting on it before Mr Nath's position became clear. Mr Johnston said that what was proposed was a huge amount of surgery significantly increasing risk to the structures in the neck and spinal cord. He thought that very few spinal surgeons would advocate it. Indeed he was astonished that such an approach should be suggested. It would put the pursuer at significant risk of deformity. There was an increased risk of damage to the soft structures of the neck, oesophagus and pharynx giving rise to risk of problems with swallowing and the voice. In particular Mr Johnston was astonished that such far reaching surgery should be proposed for a patient with cervical spine pain and no neurological symptoms or myelopathy.

[50] I had little difficulty in accepting Mr Johnston's evidence of the dangers of Mr Nath's proposal and his view that very few neurosurgeons would ever propose such extensive surgery. Nor was I impressed with the changing nature of the pursuer's case on this issue which was presumably driven by Mr Nath.

[51] The third issue on which I had some concerns related to his evidence on whether or not Mr Johnston's actions fell below that of an ordinary competent consultant neurosurgeon exercising ordinary skill and care. At times Mr Nath appeared either unable or reluctant to answer questions relating to this matter. His answers were at times hesitant and equivocal. Certainly there was sufficient in his answers, particularly from re-examination, from which I could take his opinion that Mr Johnston was negligent in respect of the central features of the case still remaining. But I was left uncertain as to whether or not Mr Nath's hesitancy was born out of a respect for Mr Johnston, which he undoubtedly had, or a lack of confidence in his own opinion.

[52] The defenders led one witness, Professor Ciaran Bolger. He is head of the department of clinical neuroscience at the Royal College of Surgeons in Ireland and director of research and development at the National Neurosurgery Unit at the Beaumont Hospital Dublin. He is also a consultant neurosurgeon at the Beaumont Hospital having previously held a consultant neurosurgeon's post at the Frenchay Hospital in Bristol. He has also held posts in neurosurgery in Adelaide, South Australia, in Liverpool and Salt Lake City, Utah, USA. He is a past president of Euro Spine (The Spine Society of Europe) and has been a member of the editorial board of the European Spinal Journal and on the review panel or advisory boards of other neurosurgery or spine journals. He is also on the council of the Society of British Neurosurgeons. He has also written extensively and contributed chapters to books on cervical myelopathy and surgical treatment on the spine. He has also patented devices for the fixation of a cervical spine and fixing anteriorly.

[53] Of the three neurosurgeons who gave evidence I found Professor Bolger to be the most impressive. He gave his evidence in a clear, understandable and at times robust manner. He was also extremely well qualified enjoying a high reputation in his field. On balance I considered that his academic and practical experience made him at least marginally better qualified to give evidence on this topic than Mr Nath.

[54] Mr Hofford pointed out that Professor Bolger only became a consultant in 1996, two years after these events, and questioned his expertise in the use of Halifax clamps. Halifax clamps are no longer in use for cervical fixation; other methods are now used. Professor Bolger said that he had used such clamps but clearly he had not had nearly as much experience as either Mr Johnston or Mr Nath, both of whom are older.

[55] If this proof was about the use and mechanisms of Halifax clamps I would have agreed with Mr Hofford's criticisms. However no criticism is made of the fixing of the clamp and there is no suggestion of a failure of that mechanism. Accordingly I did not consider that the fact that Professor Bolger was not a consultant at the time of this operation in 1994 was reason to place less weight on the evidence that he gave to this court.

[56] Professor Robin Sellar also gave evidence for the pursuer. He is Professor of Neuroradiology at the University of Edinburgh and a consultant neuroradiologist.

[57] Mr Ferguson in cross-examination and in submissions relied to some extent on a review of what Mr Johnston had done carried out immediately after these events. This was done at Mr Johnston's invitation by fellow consultant neurosurgeon, Mr Taylor. His short assessment, which is supportive of Mr Johnston, is contained in the clinical notes. Mr Taylor was not a witness and so there was no opportunity for him to explain his conclusions or be challenged on them. Had Mr Taylor made an observation that was critical of Mr Johnston then that might have been significant. However I consider it very difficult to place any weight on a supportive opinion carried out in the immediate aftermath of a catastrophic event not just for the patient but for the clinical staff and the hospital where it happened by a close professional colleague when that person does not give evidence. Accordingly I have disregarded Mr Taylor's assessment.

The first case - consent

The pursuer's case on record is that:

"Mr Johnston did not indicate to the pursuer that there was any risk of paralysis as a result of the surgery he intended to perform. On the contrary, Mr Johnston indicated that the operation was easy and carried no risks. He did so in the context of two previous operations where he had properly advised that there was a significant level of risk of neurological damage attached."

[58] Mr Glancy said in evidence that he was told by Mr Johnston that there was no risk of paralysis - "No risk of damage. These were his words." He said Mr Johnston told him that this was the easiest operation that he would do. This assurance that there was no risk of paralysis contrasted with the risks which he said he was advised of in relation to the two previous operations.

[59] According to Mr Glancy the risk of paralysis in the two previous operations was 10-15%. When asked in cross-examination if he was sure about this he clarified that in one operation it was 10% and in the other 15%. He had been willing, in respect of the two previous operations to accept the risk of a 1 in 10 or 1 in 7 chance of paralysis. Mr Glancy told the court that if he had known what was going to happen he would not have consented to the operation. However he was asked in cross-examination whether he would have consented if he had been told that there was a small risk of paralysis. He replied that he would have. He would have assumed the risk because of the severity of the pain which was keeping him off work. He was looking for a surgical solution. He was asked whether he would have accepted a 1 in 500 or 1 in 1000 risk. He said he would have. He was also asked whether if it had been explained to him that the risk of paralysis was as high as 10-15% it was a risk he would have accepted. He replied that he would have done anything to have the pain relieved. His present pain relief was not working and surgery was the only option.

[60] When Mr Glancy was admitted to hospital on 11 July 1994 he was examined by Mr Johnston. The clinical notes record that "It may be pain of instability and he knows it. I have estimated the chance of success at 75% at most." It then notes "For lateral mass plate fixation C5/6 and graft.". On 15 July following the operation Mr Johnston wrote a letter to Mr T.A. Hide, clinical director of the Institute of Neurological Sciences. The letter is headed "Alexander Glancy, contemporaneous notes of 13.7.94." In it Mr Johnston says that he is putting the information on paper now "because it is possible that it may be required in the future and I wish to make sure the facts are as little distorted by time as possible." In the letter Mr Johnston records seeing Mr Glancy on the afternoon of 11 July. He had explained to him that the pain could be normal cervical pain associated with disc degeneration. The other alternative which he felt more likely was that the pain was related to a slight degree of instability at C5/6 level. He had explained that there were two courses of action. The first was to continue with conservative management. The other was to carry out a fusion procedure. He gave him a 75% chance that the latter procedure would work. He had seen Mr Glancy again later that afternoon after his clinic by which time Mr Glancy had decided that he would prefer the surgical option. The letter goes on:

"I cannot recall the exact words which were said but I would have reiterated the relatively modest likelihood of full relief of his neck pain with cervical fusion."

He continues:

"I did not place a percentage risk of major neurological damage or deficit on this operation but I would have indicated to him that it was a safe procedure, which it was and that the risk of any major neurological damage was tiny."

Later he notes:

"As for consent is concerned I did speak to him on two occasions and although I did not place a percentage risk on the procedure I did inform him that it was a safe procedure."

[61] In a note for the case record which was dictated on either 16 or 19 July Mr Johnston notes a conversation with Mr Glancy after the operation on 13 July in which he says:

"He recalls, and I recall, the conversation we had pre-operatively in which I did not express any specific risks of myelopathy associated with this operation. We both recall me saying that it was a safe procedure largely because the spinal canal was not going to be breached or opened."

[62] So far as the risks associated with the two previous operations were concerned Mr Johnston said in evidence that there had been a 1% to 2% chance of paralysis in each of these operations and that was what Mr Glancy would have been told. Mr Nath supported Mr Johnston's assessment of the risks associated with this operation. He said that the risk was so small as to be almost negligible. He continued "I do not think applying the clamps caused tetrapleagia. If pressed for a percentage chance of tetrapleagia I would have said thousands against."

[63] Accordingly the risks involved in the previous two operations were significantly greater than the operation conducted on 12 July. Mr Johnston said there was no possibility that he would have advised Mr Glancy that the risk of paralysis was 10-15% in connection with the two previous operations. Indeed he would never have carried out these operations with that degree of risk.

[64] It should be noted that Mr Glancy has no recollection of being told that the chances of success of the fixation operation were 75% at most. Nor does he recall being told that the pain was probably as a result of instability.

[65] Mr Glancy's evidence that he was told that there was no risk of paralysis found some support from his wife's evidence. Mrs Glancy was not present at the consultation between her husband and Mr Johnston. However she told the court that she had visited her husband at visiting time on the evening of 11 July. He had told her that there was no risk of paralysis unlike the first two operations. The following day, 12 July, Mr Glancy phoned his wife before the operation. Mrs Glancy had told her husband that she was worried. He told her not to worry. This was the easiest operation Mr Johnston did. According to Mrs Glancy her husband explained that it would be carried out using the Halifax clamp and that there was no risk with the operation. In cross-examination she confirmed that she had been told in the telephone call that a Halifax clamp was to be used. There was no mention of the alternative possibility of lateral mass place fixation.

[66] I found Mr Glancy to be a straightforward witness. The general assessment made of him by the nurse on his admission in July 1994 was of "a very pleasant well kempt gentleman". I have no doubt that this was an accurate and genuine assessment. In the witness box he appeared dignified, alert and honest. It was clear however that he has a poor memory of events and volunteered as much in cross-examination. However I formed the opinion that he was doing his best to give an honest account of what he recalled.

[67] So far as Mrs Glancy is concerned there is no doubt that she has lived with the devastating consequences of her husband's operation for over 18 years. Caring for her husband imposes significant responsibilities on her and I suspect that it has not been easy. Indeed Mr Glancy admitted that his wife had on occasion borne the brunt of his frustration. I am sure that she too was doing her best to honestly recount what she remembered. However I formed the impression that she had been rehearsing her evidence to herself over very many years. She knew what she wanted to say and stuck to it. It is also clear that at the time Mr Glancy had the telephone call with his wife before the operation no decision had been made on which method of fixation should be used. Both Halifax clamps and the alternative lateral mass plate were available in the operating theatre. It was only after the incision had been made and the initial exploration completed that Mr Johnston decided to use the Halifax clamp. Accordingly it seems unlikely that Mr Glancy would have told his wife at that point that the method of fixation would be the Halifax clamp. It seems more likely either that Mr Glancy told his wife that there were two possible methods of fixation and Mrs Glancy has only recalled one or that she found out about the Halifax clamp later and falsely recalls being told about it in the phone call. In either case it throws a little doubt on reliability of her memory after 18 years.

[68] I have great difficulty in accepting Mr Glancy's evidence that he was told that there was no risk of paralysis. In the first place, Mr Glancy was clearly wrong in his evidence when he said that he was told that the risks associated with the earlier operations involved a 10-15% chance of paralysis. This was no mere slip of the tongue. He had ample opportunity to correct himself both in evidence in chief and in cross-examination. It was explained to him that this meant there was either a 1 in 10 or a 1 in 7 chance of paralysis. He remained convinced that he was told that these were the risks involved in the operations in 1992 and 1993. Given that his memory of the information of the risks associated with these operations is so obviously at fault it is difficult to see how I can accept his evidence in relation to the risks associated with this operation.

[69] Secondly, as Mr Ferguson pointed out, when Mr Johnston had gone to see Mr Glancy immediately after the operation Mr Glancy apparently said to him words to the effect "What have you done to me you bastard?". He did not go on to challenge him that he had been told that there was no risk of paralysis. In itself this may not amount to much but one might have expected some challenge at this time. After all, according to Mr Glancy, he had been told immediately prior to the operation that there was no chance of paralysis. Despite this he is now paralysed. He was sufficiently upset to swear at Mr Johnston. Yet no mention is apparently made of the assurance that the operation would not lead to paralysis.

[70] Thirdly it seems to me inherently unlikely that Mr Johnston would ever tell a patient that there was no risk of paralysis. He was at the time a very experienced consultant neurosurgeon. Both Mr Nath and Professor Bolger were of the view that it was highly unlikely that an experienced neurosurgeon such as Mr Johnston would have told Mr Glancy that there was no risk of paralysis.

[71] For all these reasons I cannot accept that Mr Glancy was told that there was no risk of paralysis.

[72] I should note that Mr Ferguson pointed out that the positive averment that the operation carried no risks was only added by adjustment on 12 September 2012. Before that the averment simply read that Mr Johnston did not indicate to the pursuer that there was any risk of paralysis. Mr Glancy was asked in cross-examination whether he had told his lawyers that Mr Johnston had told him that there was no risk of paralysis. He replied that he believed he had told Hastie & Co in 1997. He could give no explanation as to why it had been missed out in the pleadings. He denied that the reason for the omission was that it was not true.

[73] Mr Hofford submitted that the reason for the change in the pleadings was as a result of answering averments made by the defender. While it seems odd that there was such a late change in such a critical averment I am not certain that this was a result of a change in the pursuer's position. Accordingly it has played no part in my considerations.

[74] Having rejected the proposition that Mr Johnston told Mr Glancy that there was no risk of paralysis I find it more difficult to know precisely what he did say. This difficulty is compounded by the passage of time which inevitably affects evidence based on memory as opposed to documentary evidence.

[75] Mr Johnston explained in evidence that in attempting to explain the risks involved in any operation he attempted to get on the same wavelength as the patient. This inevitably involves a conversation in which the risks are discussed in a manner which is understandable to the patient.

[76] I am satisfied that there was such a conversation. It is clear to me that the risks were explained in a manner which related the risk to the risks which Mr Glancy had accepted in the previous operation. Mr Johnston says in his letter to Mr Hide that he did not tell Mr Glancy of any specific risk of paralysis in contrast to the previous operation. He also says that he told him that the operation was safe. I am satisfied, despite Mr Glancy not recollecting this, that he was told that the chances of success were no more than 75%. In the letter to Mr Hide, Mr Johnston said that he would have advised Mr Glancy that the risk of any major neurological damage is tiny. Mr Johnston also noted the terms of the conversation post-operatively that he had with Mr Glancy after the operation in which he states that they both recalled the pre-operative conversation in which Mr Johnston did not express any risks of myelopathy. They both recalled him saying that it was a safe procedure largely because the spinal canal would not be breached.

[77] I find two things about this account curious. The first is that in the letter to Mr Hide Mr Johnston is able to say that he would not have given any percentage on the risks without any difficulty but resorts to the phrase "I would have told" as a pre-fix to saying that it was a safe procedure and the risks of paralysis were tiny. This after all was only a few days after the event. Secondly I note that this phrase is absent from the note of the conversation with Mr Glancy.

[78] On the other hand I also note that in the clinical notes recording the diagnosis and discussion pre-operatively Mr Johnston records that "A posterior fixation would be safer and just as likely to succeed." That is strongly suggestive that there was a discussion of risk. This is a note that also records that there is a 75% chance of success at most.

[79] In his submissions to me Mr Hofford drew my attention to the use of the phrase "I would have" and submitted that I should take care in accepting evidence based on a medical practitioners practice where there was evidence from the pursuer corroborated by his wife which contradicted it. He drew my attention to a number of cases including Campbell v Borders Health Board at paragraph 28 and Joyce v Merton, Sutton and Wandsworth Health Authority [1996] PIQR 121 and in particular the observations of Hobhouse LJ at page 147.

[80] I accept that care should be taken in accepting evidence of practice in the face of credible and reliable evidence which contradicts it. However in this case I have not found the pursuer a reliable witness on this issue.

[81] Parties were agreed that what risks are to be disclosed to a patient in order that the patient can make an informed choice as a matter of clinical judgment to be based primarily on the basis of medical evidence applying the test in Bolan v Friern Hospital Management Committee [1957] 1 WLR 582 (and thus in Scotland Hunter v Hanley); Sidaway v Board of Governors of the Betham Royal Hospital 1985 AC 871. However there may be circumstances in which the disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical practitioner would fail to make it; per Lord Bridge in Sidaway. The example given by Lord Bridge (at p 900) is a 10% chance of a stroke from the operation citing the Canadian case of Reibl v Hughes 114 DLR (3d) 1 . In this case the risks of paralysis arising out of a fixation and fusion operation appear so small that I would have found it difficult to conclude that disclosure of this risk to the pursuer was necessary without the benefit of expert medical opinion.

[82] Mr Ferguson for the defenders accepted that if the court accepted the pursuer's evidence that he was told that there was "no chance of paralysis" preferring that to Mr Johnston's evidence on the issue, then Mr Johnston failed to give a proper warning as to the risks and that negligence would be proved. That position is in line with the evidence given by both Mr Nath and indeed Mr Johnston.

[83] Although I was not specifically addressed on whether negligence would be proved if I found that Mr Glancy had not been advised on there being any risk - as opposed to positively saying that there was no such risk - I have considered that possibility. Professor Bolger in his report says that the usual practice is to advise the patient of two possibilities. Firstly, the chances his condition could be worse following surgery and secondly that the operation might not relieve him of his symptoms. On the second of these possibilities I am satisfied that Mr Glancy was told that the chances of success were 75% at most. Accordingly it appears to me the issue is whether Mr Glancy was advised that the risk of paralysis was tiny. If he did so then, on the evidence, that would be an accurate assessment of the risk. It would also alert Mr Glancy to the fact that there was at least some risk, albeit very small.

[84] Having considered this issue carefully I have concluded on the balance of probabilities that Mr Glancy was advised that there was a tiny or a very small risk associated with the operation. My reasons for doing so are as follows. First I do not accept the pursuer's evidence as reliable. Secondly it seems unlikely, though not impossible, that an experienced consultant neurosurgeon would not tell a patient that there was some risk associated with an operation such as this. This would be Mr Johnston's normal practice and I took as much from his evidence in court. Thirdly, however, I am satisfied from the contemporaneous clinical note made pre-operatively that there was a discussion about the diagnosis, about the chances of success and about the relative safety of a posterior as opposed to an anterior operation. It seems to me inconceivable that such a discussion did not include a discussion of the risks involved.

[85] Mr Ferguson submitted that even if I were to find negligence on the part of Mr Johnston in not advising of the risks associated with the fixation and fusion operation there would be no causative effect since the evidence was that Mr Glancy would have undertaken the operation in any event. As recorded above Mr Glancy said in evidence that if he knew what was going to happen to him he would not have undertaken the operation. No doubt that is true but it was also clear that if he had been told that there were risks involved and he was given a range from 1 in 1,000 to 1 in 7 he would also have consented. As he said he would have done anything to relieve the pain. This is against the background of Mr Glancy having accepted significantly greater risks in the first two operations.

[86] Accordingly I am satisfied that, on the hypothesis that Mr Johnston was negligent in not informing Mr Glancy of the risks, the pursuer would not have proved causation. It is clear that he would in any event have undertaken the operation.

[87] Both counsel referred me to the case of Chester v Ashraf 2005 AC 134. Mr Hofford sought to suggest that this was a modified approach to causation. This was a case where a patient was given inadequate advice as to the risks of paralysis associated with an operation. The claimant gave evidence that she would not have undertaken surgery but that she might have undertaken the operation at a later date. She said that in the meantime she would have spoken to various journalist friends, the BMA and would have wanted at least two further opinions before consenting to the operation. Accordingly the issue was whether the claimant, being unable to prove that she would never have had the operation a causative link was nevertheless proved.

[88] It is clear from the reasoning of Lord Hope of Craighead that the normal rules of causation remain. As Lord Hope put it whether, in the unusual circumstances of that case, justice requires a normal approach to be modified (paragraph 85). The modification which he speaks of is where the patient would find the decision difficult and would wish time to reflect or seek a further opinion before finally deciding on whether to undertake an operation. To deny a remedy to those who find such a decision difficult is to discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. On policy grounds his Lordship held that the test of causation was satisfied in that case. Mr Ferguson pointed me to paragraph 63 of Lord Hope's speech where his Lordship referred to the case of Smith v Barking, Havering and Brentwood Health Authority 1994 5 Med LR 285. There Hutchison J found on the balance of probabilities that the claimant would have consented to the operation even if properly advised about the risks of tetrapleagia. Mr Ferguson submitted that the same issue of causation arose in this case.

[89] I am satisfied that had I found a breach of duty in failing to warn of the risks the pursuer would not in any event have proved causation. It is clear that he would have undertaken the operation.

[90] Mr Ferguson took objection to questions to the pursuer as to whether or not he would have undertaken the operation had he known the risks. The objection was on the basis that there was no record for such questions. I allowed the question subject to competency and relevancy and the objection was reviewed in submissions.

[91] It is true that there are no pleadings directed to the question as to what the pursuer would have done if he had been properly advised as to the risks of the operation. However I have concluded that it is implicit within the averments that he would not have undertaken the operation. If it were not so then the pleadings of fault would be redundant as there would be no causative effect. In the end, of course, that was not the position of the pursuer. In the circumstances I have decided to allow the questions.

Second ground - A failure to carry out investigations

[92] The second ground on which it is submitted Mr Johnston failed in his duty of care was in failing to carry out proper investigations specifically a myelogram or an MRI scan, before proceeding with a posterior fixation and fusion.

[93] There are I consider two interrelated issues. The first is whether or not Mr Johnston's diagnosis of pain from instability at the C5/6 level was one which an ordinary consultant neurosurgeon exercising ordinary skill and care could make without further imaging. The second issue was whether in any event such a consultant neurosurgeon could proceed to fixation and fusion operation without further imaging.

[94] As a background parties were agreed that had a MRI scan been carried out before the operation it would have demonstrated the same features as the MRI scan carried out on 13 July 1994, ie severe cord compression at the C3/4 level resulting primarily from the disc prolapse anteriorly and a further soft disc prolapse at C4/5 level which was partially sequestrated posteriorly but causing only mild to moderate anterior impression on the spinal cord.

[95] In his evidence Mr Nath said that there was no evidence of instability in the x-rays because there was no movement. A patient whose neck is unstable he said is likely to have some movement demonstrated on the flexion and extension x-rays. He pointed out that normally a discectomy will fuse naturally without the need for fusion and fixation with a bone graft. Given that Mr Glancy had already had two operations at C5/6 and he had come back with what Mr Johnston thought was localised neck pain and no abnormal movement shown on the x-ray Mr Johnston could not gauge where the pathology might be coming from. Mr Nath said that he would have undertaken some further investigation at this stage to find out where the pain might be coming from. There was no particular reason, he said, to assume the pain was coming from the area operated on as there was no instability. At that stage he was doing the operation blind. It was not logical. Mr Johnston did not know what he was treating. In his report Mr Nath says that it would be difficult to conclude based on the flexion extension views in the x-rays taken in 1993 that there was any degree of significant instability at C5/6 but he adds "although of course this is always possible". In evidence however he was clear that it was not possible to diagnose instability as the x-rays showed none. Mr Nath was asked about the clinical note by Mr Johnston at the time of the consultation with Mr Glancy on 11 July in which Mr Johnston said that the diagnosis of instability was a clinical one. Mr Nath said that the x-ray mitigated against instability. If it was clinically significant one would see it. The x-ray showed movement elsewhere but not at C5/6. Mr Johnston was too focused on C5/6. His diagnosis was neither logical nor rational. The MRI scan taken on 13 July showed that the pathology had changed over the years. It showed progress towards severe cord compression. If Mr Johnston had had this information then there was no reason to progress to fusion. Fusion was not the right operation. In his opinion it was the severe cord compression that was causing pain. If there was pain at C5/6 then a collar would have aided fusion. Mr Nath suggested that the description of neck pain radiating onto the shoulders and upper arm in the letter dated 25 April 1994 from Mr Mathew indicated that neck pain was not localised. That pointed away from C5/6 as being the source of the pain. In cross-examination however he accepted that arm and neck pain could be part of neck pain and that there was an absence of radiculopathy or myelopathy. In cross-examination he also said that he thought that the pain was equally probable to come from C3/4 as C5/6 and he accepted that if it was at C5/6 it was instability. He said that it was a potential diagnosis that some surgeons might have made although he appeared to say that if they did make it they would not be exercising the degree of skill and care which an ordinary competent neurosurgeon should exercise.

[96] Professor Robin Sellar also concluded that there was no instability shown in the cervical spine in the plain films taken in 1993. However he refers to the note by Mr Johnston that this is a clinical diagnosis and goes on "Mr Johnston is a highly experienced surgeon and such a clinical diagnosis without x-ray evidence is therefore reasonable".

[97] Professor Bolger's comment on Professor Sellar's opinion that the x-rays showed no instability was that this was the view of a radiologist. In his opinion Mr Johnston's diagnosis was a clinical one which he was entitled to make in the absence of movement shown in the x-ray. According to him the vast majority of cases of neck pain in this region will show no instability in x-ray.

[98] It was suggested to both Mr Johnston and Professor Bolger that when one looked at the myelograms of July 1992 and April 1993 there was clear indication of progression of symptoms. In particular the 1993 myelogram showed indentation of the theca at C3/4. These results together with the findings of the senior neurological registrar at the out-patients clinics, depending on their interpretation, showed a deteriorating position which had continued post 1993. In those circumstances it was suggested that further imaging was a prerequisite to a proper diagnosis. Mr Nath thought that a myelogram or a MRI scan were mandatory.

[99] Mr Johnston said that he was aware of the 1993 myelogram and of the degeneration at C3/4 but conceded he was not aware of any difficulty at C4/5 which was shown on the post-operative MRI scan. He repeated that further images would not show him where the pain which was exhibited in July 1994 was situated. There was no indication of myelopathy or radiculor pain which would be apparent if the problem stemmed from compression of the spinal cord. The pressure on the theca was not the problem. It was the continued instability at C5/6.

[100] When Mr Johnston saw Mr Glancy on 11 June 1994 he was not of course seeing him for the first time. He had been his patient since the referral in 1991 and he had conducted two operations on him in 1992 and 1993. Between the discectomy in 1993 and his admission to hospital in July 1994 Mr Glancy had remained an out-patient. He had been seen by Mr Cruickshank in June 1993 when the central neck pain had become more pronounced and he had considerable spasm associated with the neck. That in itself Mr Johnston said was an indication of instability as spasm was associated with the patient attempting to protect the neck from movement. Neurological examination of his arms and in particular his legs were normal and he was suffering a great deal of central neck pain with muscle spasms. Mr Johnston had examined the x-rays taken following that examination at the out-patient clinic and there was no evidence of subfluxation or other lesion. The out-patient clinic in April 1994 had shown pain radiating into the shoulder and upper arm but this was consistent with referred pain. Mr Johnston's position was that there were no symptoms to suggest problems at C3/4 or indeed any indentation of the theca at C4/5.

[101] Professor Bolger was asked about the letters recording these findings. It was suggested to him that it was perfectly possible that the description of pain radiating into the shoulder and upper arm could be myelopathic pain. Professor Bolger rejected that view. He said myelopathic pain was different. The registrar referred to radiating pain not radiculor pain. The pain described was consistent with muscle pain.

[102] He was also asked about the notes made on admission on 11 July which referred to "mild right arm weakness present", the suggestion being that this supported neurological symptoms. He said that he did not consider this to be of particular significance. There was nothing to suggest a radiculor problem. He went on to emphasise that if pain was in a crucifix pattern that would point to neck pain ie referred pain.

[103] The clinical notes taken by a junior doctor on admission noted slightly reduced power in the left arm and difficulties relating to touch and pain at C5 to C7 in respect of the left arm. While on one view they might support a problem with the nerve route the findings were largely dismissed not only by Mr Johnston but also by Mr Nath who noted that the junior doctor did not appear to know his dermatomes. The findings are in any event on the opposite side of those recorded in the nursing notes.

[104] Professor Bolger's view was that there was no requirement to perform either a myelogram or an MRI scan. The diagnosis of axial neck pain related to relative instability at the C5/6 level because of two previous surgeries. These operations had in themselves helped to de-stabilise the neck. The problem was clearly one of axial neck pain without any evidence of neurological deficit. In his view a myelogram or a MRI scan would have added nothing as at this time Mr Glancy was presenting with neck pain in isolation with no radiculor element and no neurological deficit.

[10]5 At the heart of this issue is whether or not a clinical diagnosis such as the one that was made by Mr Johnston can be made without radiological support. As the argument progressed it was at times like listening to two competing philosophies with both sides apparently frustrated that the other did not recognise their argument. Mr Nath was adamant that you could not make a diagnosis of instability without such images. Mr Johnston and Professor Bolger were equally adamant that one could. They appeared to regard the radiology as a diagnostic tool but not a necessary one.

[106] In the end I reached the conclusion, without too much difficulty that no fault can be found in Mr Johnston's diagnosis of pain from instability at C5/6. My reasons for reaching this view are as follows. First I accept the evidence of Mr Johnston and Professor Bolger of pain of instability or axial pain can be diagnosed in the face of radiological evidence which does not show as significant instability. It was I thought significant from Professor Bolger's evidence that most patients with neck pain of this nature will not show radiological signs.

[107] Secondly Mr Nath's view that a myelogram or MRI scan was required was not one supported by Professor Bolger. Significantly Professor Sellar acknowledges that a clinical diagnosis without x-ray is reasonable. Mr Nath in his report concedes the possibility that there could be significant instability without radiological evidence though in evidence in court he sought to distance himself from that concession.

[108] Third, part of the pursuer's approach has been to suggest that the pain the pursuer was experiencing was more likely to be pain from compression higher up and in particular at C3/4. There was a lot of discussion as to whether or not the pain was localised pain or the radiating pain noted by Mr Mathew signified some neurological deficit. However as Professor Bolger pointed out the letter from Mr Mathew notes that the pain is radiated and not radiculor pain. It is noticeable too that reference is made to admission for investigation and fusion. Although I did not hear from Mr Mathew it seems unlikely that a senior neurological registrar would have made such a comment if what he saw was a general pain unrelated or going beyond instability at C5/6.

[109] Finally Mr Johnston's diagnosis was not made in isolation. He had had the benefit of operating on Mr Glancy's neck on two previous occasions, seeing him in out-patients and examining his x-rays. He knew the clinical background before he made his diagnosis.

[110] Having reached the conclusion that Mr Johnston was entitled to make the clinical diagnosis of neck pain at C5/6 I had more hesitation on the issue to whether or not he ought nevertheless to have obtained either a myelogram or an MRI scan before proceeding to a fixation and fusion operation. It might well be said to be prudent to arm oneself with as much knowledge as possible before embarking on surgery.

[111] However having considered the matter I have concluded that it cannot be said that no ordinary competent consultant neurosurgeon exercising ordinary skill and care would have gone ahead with an operation to fix and fuse the neck without either an MRI scan or myelogram. In that regard I noted that Mr Nath's position was that if Mr Johnston had had these images he would not have made the diagnosis in the first place. Professor Bolger however was quite clear on this matter. It was suggested to him that had a MRI scan been done it would have stopped an ordinary competent surgeon in their tracks. On this he absolutely disagreed. The only thing that was relevant he said were the symptoms and the overriding matter was the clinical presentation. It was suggested to him that the post-operative MRI scan showed an indication of indentation of the theca at C4/5 something not shown on the earlier images. That raised the possibility of C4 radiculopathy. Would that not, he was asked, stop a surgeon from going ahead with such an operation. He replied that even if that had been known it would still have been right to offer Mr Glancy the operation.

[112] Given that I have generally preferred Professor Bolger's evidence to that of Mr Nath and have found that Mr Johnston was not at fault in his diagnosis of neck pain at C5/6 I cannot say that Professor Bolger's evidence was either illogical or irrational.

[113] Before moving on from this matter I should deal with an objection that was made by Mr Hofford to part of Professor Bolger's evidence. In evidence in chief he was asked about the x-rays of 1993 and was asked whether that informed the neurosurgeon as to whether there was instability. He replied yes and no. What it showed was no gross instability. Mr Hofford took an objection to this line on the basis that there was no reference to gross instability on Record and it had not been put to any other witness. I allowed the question under reservation of competency and relevancy. Mr Hofford renewed his objection in his submissions.

[114] I repelled the objection. It seems obvious that movement in the cervical spine will always be a matter of degree. Mr Nath himself in his report and in his evidence refers to the x-rays showing no evidence of significant instability and I struggle to see the difference between the two concepts.

The third case - Emergency operation

[115] The pursuer finally avers that Mr Johnston, in the emergency operation conducted in the early hours of 13 July, failed to carry out a laminectomy to decompress the spinal cord at C3/4 and C4/5 level. He failed to explore the pursuer's cervical spine between C3-5 to establish whether the spinal cord was compressed and whether there was an extra-dural haematoma laterally or anteriorly. No consultant neurosurgeon of ordinary skill would have failed to do so.

[116] Mr Hofford in his submission withdrew from the position that Mr Johnston should have looked for an extra-dural haematoma anteriorly. This averment had been based on Mr Nath's report. Mr Johnston considered the possibility of an extra-dural haematoma as clinically impossible and Mr Nath conceded it was unlikely. As Mr Ferguson noted it was another example of a shift of position by Mr Nath.

[117] It should be remembered that this was emergency surgery carried out in the middle of the night to remove the Halifax clamps that had been inserted the previous day and to see, if possible, what was causing the problem. It was not surgery which had been planned for some time where known risks could be assessed. It was performed under some pressure having regard to the catastrophic event that had occurred to Mr Glancy. The object was to improve things, not make them worse.

[118] It seems to me therefore that this is the sort of situation in which it is easier to be wise after the event. Experts may argue at leisure as to whether or not one course of action might have been better than another. In applying the test in Hunter v Hanley I have to consider what the ordinary consultant neurosurgeon of ordinary skill acting with ordinary care should or would have done in the circumstances which prevailed at that time.

[119] Mr Nath has had the luxury of considering Mr Johnston's actions at considerable leisure. Yet even he was changing his position on this issue in the witness box, though his central criticism remains.

[120] Mr Johnston was present when the myelogram was carried out. It showed complete obstruction at the lower border of the Halifax clamps. He was asked about the significance of this finding and said that something was obstructing the flow at the lower border of the Halifax clamp. The obvious culprit was the clamp. The removal of the clamp was the obvious next step. Mr Johnston sought and obtained permission to operate to remove the clamps. There were two objectives; the removal of the clamps which it was thought was the cause and to see if there was an extra-dural haemorrhage at the site of the surgery.

[121] The note of the operation states that the Halifax clamps and blood clot were exactly as they had been at the close of the previous operation and these were removed without difficulty. When the screws were removed the clamps were easily lifted out. There was no perceptible movement in the laminae when the clamps were removed. If they had sprung apart it might suggest that the clamps had not been over-tightened and that might point to a cause of the injury. To explore the possibility of a spinal extra-dural haematoma a small mid-line laminotomy was made at the C5 and C6 level. The extra-dural space was found to be clear. No further exploration was carried out.

[122] Mr Nath's position was that Mr Johnston should have gone further and done a decompression by way of a laminectomy at the level of C4, C5 and C6. Mr Nath said that Mr Johnston knew that there was an indentation at C3. He had found nothing further down the spine. There was nothing to lose by performing a laminectomy and achieving a decompression of the spinal cord. When asked whether it was an error of judgment not to do this operation his first response was that he was puzzled that Mr Johnston had not done this. He would have done it. He would regard it as proper practice. When it was suggested to him that it might make things worse by making the neck more unstable he responded that there was nothing to lose.

[123] Mr Hofford in his submissions criticised Mr Johnston who described Mr Nath's proposed surgery as quite a big operation. According to Mr Hofford what was being proposed was an extension of what had already been done at C5 and C6. However of course what was done at C5 and C6 was a laminotomy, an opening of a window in the laminae and not a laminectomy which would have involved the complete removal.

[124] Professor Bolger pointed out that the MRI scan taken after the last operation showed a high signal at C5/6. There was no change in the cervical spine at C3/4 until much later. The blockage was at C6 and that was where the intervention required to be. There was no blockage at C3. It was inconceivable that there would be two blockages both at C6 and C3. He described Mr Nath's suggested surgery as ludicrous and wrong. There was no suggestion of a haematoma at C3/4. Why, he asked would one go fishing for one?

[125] A significant pointer to the level of lesion comes from the four hour post-operative review. This shows some power in the arms but an absence of distal movements. Mr Johnston said that this showed the level of spine involved. The lesion was likely to be in the C5-C7 level. If the lesion was at C3/4 Mr Glancy would have had no power in his arms and his diaphragm would not work properly. He would have required a ventilator. He had no breathing difficulties prior to the fourth operation and though he had been put on a ventilator afterwards that was simply to assist his breathing post-operatively. Professor Bolger supported Mr Johnston's observation.

[126] There was evidence that even if I were to find that Mr Johnston should have carried out a laminectomy at C4, C5 and C6 Mr Glancy would be no better off and conceivably if the operation added to instability, worse off.

[127] For all of these reasons I have concluded on the balance of probabilities that it cannot be said that Mr Johnston failed in his duty of care in the conduct of the fourth operation to remove the Halifax clamps.

Mechanism of damage

[128] Mr Ferguson submitted that an inquiry into the mechanism that caused Mr Glancy's injury, while it might be of interest in itself, was academic. If the court found that there was no negligence then no issue arises. If on the other hand the court found that the consent case was proved then, he submitted, there was no causation. If the court were to find that Mr Johnston was at fault in not carrying out a more extensive laminectomy in the fourth operation then again, he submitted, that the pursuer had failed to show that it would not have made any difference. If on the other hand they had found that the diagnosis of instability was one that should not have been reached and therefore that the fusion and fixation operation should not have been performed then it was accepted that the pursuer was entitled to damages irrespective of the mechanism of injury.

[129] In the light of the conclusions I have reached I do not need to make a decision on the mechanism of injury. Had I required to do so I would have found it very difficult.

[130] Professor Sellar concluded that the cause of this damage is uncertain. He went on, however, that there was evidence of cord compression at the C4/5 level at the time of the operation. This came from the immediate post-operative MRI scan. In his opinion the high signal in the cord seen there was most likely to be due to ischaemia (lack of oxygen). This was probably due to focal compression of the cord at the time of surgery. This in turn was due to patient positioning with the head maximally flexed. The hypertension during the operation with the blood pressure being recorded as being as low as 85 over 40 was likely to have been a contributory factor.

[131] It was not part of the pursuer's case that there was fault in the positioning of the pursuer on the operating table. Nevertheless it was cited as a factor in compressing the spinal cord sufficiently to cause damage. This possible mechanism was in my opinion undermined when it was pointed out that the clinical notes did not support the case that Mr Glancy's head was maximally flexed. The evidence from Mr Johnston, which was not disputed, was that the degree of flexion would be in the region of 10 to 15 degrees. When Professor Sellar was asked about this he said that he would be very surprised to find Mr Glancy tetrapleagic if the degree of flexion was 10 to 15 degrees. In his opinion the drop in blood pressure on its own was not sufficient to cause damage to the spinal cord. Mr Nath continued to believe that even the degree of flexion of 10 to 15 degrees was capable of producing this degree of trauma. When it was suggested to him that this was consistent with natural movement in everyday life his response was that there was a difference between the forceful flexion on an operating table and the free movement enjoyed in everyday life where one can shift position to protect the neck. Professor Bolger said that during an operation the head should be kept in a neutral position or the flexion minimal. The optimum was neutral. A degree of flexion is not unusual and there can be issues of accessibility with obese people where there can be rolls of flesh at the neck. It should be noted that Mr Glancy is obese. In the end Professor Bolger appeared to dismiss the possible compression on the cord as not relevant. He considered that the period of hypotension during the operation may be an indication of damage to the spinal cord. However it is just as likely to represent the sub-clinical cardiac event causing a period of hypotension. He noted that the pursuer did not have a history of heart disease but he was clearly obese, was a heavy smoker and there was a family history of heart disease. He also suggested that had the pre-existing spinal cord compression been attenuated by the drop in blood pressure one would have expected that the area of damage to the spinal cord would have been opposite the area of accentuation ie at C3/4 level. That was not the case on the post-operative MRI scan. For this reason he thought that the level of damage to the spinal cord was the level of surgery and not the level of pre-existing spinal cord compression.

[132] I would have found it very difficult to resolve these difficulties had I been required to do so. It remains, unfortunately, the case that the cause of Mr Glancy's catastrophic injury in the operation remains unexplained.

[133] Accordingly I sustain the third plea-in-law for the defenders and grant decree of absolvitor. I reserve the question of expenses.