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Graham Cleary’s career as a freight delivery driver that involved a large component of heavy manual handling inevitably carried a high risk of developing spinal injuries.
In May 2020, orthopaedist Thomas Pitham conducted a L4/5 disc fusion on Cleary’s spine with bone grafts inserted into the disc and on the outer “gutters” of the vertebra to provide structure and stability as they hardened to bone over the following months.
The surgery provided immediate relief to the 50-yr-old but within three weeks or so he reported pain and numbness running down his back, left buttock and down his left leg to the knee.CT scans revealed an osteophyte – which had broken off when he was fixing the two vertebra during the fusion – sitting to the left of the L4 vertebra.
Pitham concluded that bone was causing inflammation around the nerve and causing the left sided symptoms.
When a course of steroid injections did not alleviate the pain, he recommended revision surgery for nerve decompression which was conducted at Wollongong Private Hospital in July and required Dr Pitham to “slide back” the cage to reposition it so as to decompress the L4 nerve “along its length”.
Waking in the recovery area, the patient reported having no left sided pain or numbness,
On the day after surgery, a highly mediated – on pain relief – he was being pushed along the corridors from x-ray back to ICU, through a series of left hand turns when the foot of his hospital bed bumped into a wall after the leading nurse let go to open a troublesome door.
Cleary – who was sitting up at 45 degrees on the bed – felt a shudder up his body and pain in his back on impact and “within an hour” of his return to ICU he started to have numbness and intense pain down his left leg. His left foot started going red.
Further revision surgery five days later removed a piece of material from the bone graft that was found under the left L5 nerve but the removal did not alleviate his pain, numbness and altered sensation.
Cleary – who was already involved in a workers’ compensation claim – sued the hospital alleging the bump against the wall must have dislodged a fragment of the graft.
His claim in Sydney’s District Court before Judge Ann Ainslie-Wallace who accepted the patient’s account of the nurses causing the hospital bed’s impact with the wall and his immediate sensation of injury.
His absolute certainty about how the impact occurred – and that it had been the foot of his bed that struck the wall – overcame some confusion when he was confronted in the witness box three years after the event, with videos depicting the route through the corridors and the two doors they had negotiated.
The appeal judges agreed with the trial judge that although the contact between the bed and the wall may have appeared minor to the nurses, “there was no reason not to accept Mr Cleary’s account of the incident, the effect of the collision on his body and his sensation of immediate pain and discomfort”.
They also observed that expert evidence about the effect of the minor impact wasn’t necessary because credible evidence was available from the patient himself: “His evidence was not glaringly improbable or contrary to compelling inferences.”
Judge Ainslie-Wallace found the risk of injury by reason of such an event to have been not insignificant and with potentially serious consequences and ruled the hospital to have been negligent.
But had the impact caused the bone fragment to dislodge?
Professor Noel Dan – with whom his counterpart Marcus Stoodley and Dr Pitham concurred – lay the blame for the nerve impingement and resulting permanent damage on the L5 nerve being stretched over the bone graft fragment dislodged from the operation five days earlier.
Professor Stoodley though expressed some doubt that it was the force of the impact caused the bone graft material to be expelled from the site of the disc fusion.
Notwithstanding that contrary evidence, the appeal judges upheld the trial judge’s finding that the fragment was unlikely to have escaped during the July fusion operation or that the graft was so precariously placed that normal patient activity would have caused it to dislodge.
The hospital did though succeed in having Cleary’s damages reduced from $584,000 to $350,000 by convincing the appeal judges to rescind his awards for future loss of earning capacity and past domestic assistance.
Categories: Medical Negligence