By Michelle Mitchell, Marketing Manager at INNEG

Surgical complications in paediatric patients with complex neurological conditions pose significant challenges - not only clinically, but also in the legal assessment of consent, causation, and breach. In this article, we reflect on a real case shared by Consultant Spinal Surgeon Mr Masood Shafafy and examine its implications through a medico-legal lens. For clinical negligence professionals, it offers a powerful example of how decision-making, documentation, and communication can determine the outcome of a claim.

Case Overview

During the final stage of surgery, intraoperative spinal neuromonitoring, which had already been unreliable, was lost entirely in the lower limbs. The operating surgeon made a judgement call to proceed without conducting a wake-up test, believing that the risks of prolonged anaesthesia and infection outweighed the potential benefits in this neurologically complex case.

Consent: More Than a Signature

Although the patient lacked mental capacity, the consent process appears to have been limited to a single signing event with her parents. The surgeon had not fully understood or explored her means of expressing discomfort - a key neurological sign that was functionally important to her family.

Mr Shafafy notes that consent should never be a one-off event. Instead, it should be a process with opportunities to explore patient-specific risks, clarify uncertainties, and tailor communication to both the child and their guardians.

For clinical negligence professionals, this highlights the importance of assessing not just whether consent was obtained - but whether it was meaningful, informed, and appropriately documented.

The Intraoperative Judgement Call

Intraoperative neuromonitoring in patients with severe neurological conditions is often unreliable, and while the wake-up test may be of limited utility, it had not been discussed as part of the preoperative planning. When the signal was lost, no contingency plan was in place, and the parents were not consulted before the decision to continue surgery.

The Trust’s internal investigation criticised:

The lack of comprehensive preoperative assessment

Insufficient discussion of risks and outcomes

The unilateral nature of the intraoperative decision

This case underlines how unshared clinical judgements, even if reasonable, can leave surgeons and their employers exposed to litigation if documentation and communication fall short.

Causation: A Grey Area with Legal Weight

The Trust agreed to a substantial out-of-court settlement. The focus of liability was less on the specific outcome and more on the process - particularly the failure to establish clear, informed consent and to involve the family meaningfully in key decisions.

This case also reinforces the importance of thorough, in-person assessments - an issue we explore further in Why You Can’t Replace a Face-2-Face Examination when it comes to Spinal Injury Claims

Key Takeaways for Clinical Negligence Professionals

This case offers several learning points for those handling paediatric spinal injury claims:

Informed consent must be an ongoing dialogue, especially when children lack capacity

Functional neurological signs, even subtle ones, must be considered and documented

Anticipated intraoperative complications and response plans should be part of the consent process

A lack of documentation or communication, even where clinical judgement may be defensible, can create significant legal exposure

Further Reading & Expert Instruction

This case discussion draws on a real example originally shared by Consultant Spinal Surgeon Mr Masood Shafafy. You can read his full clinical perspective here.

For insight into managing spinal injury outcomes post-surgery, including the medico-legal implications of rehabilitation, seeThe Role of Orthotics in the Management of Spinal Injuries.

Mr Masood Shafafy, MB BS, FRCS, FRCS (Tr & Orth), is a leading Consultant Spinal Surgeon based at Nottingham University Hospitals. He specialises in complex spinal deformities and reconstruction, with particular expertise in paediatric and adult scoliosis, spinal trauma, and revision procedures.

Mr Shafafy has been the Programme Director for the internationally recognised Nottingham Spinal Fellowship since 2009 and regularly lectures nationally and internationally. His medico-legal practice includes expert opinion on spinal injuries, surgical complications, delayed diagnosis, and complex spinal claims.

Mr Shafafy accepts instructions for both adult and paediatric spinal claims relating to spinal pathology, surgery, or injury.

For medico-legal enquiries or to request his CV, Mr. Shafafy can be reached at masoodshafafy@inneg.co.uk