Abstract
In October 2004 the claimant, who was then in her early 30s, was diagnosed as having cervical cancer. This required a radical hysterectomy. In January 2005 she complained of low back pain and a year later, increasingly severe pain in the right thigh and knee. A magnetic resonance imaging (MRI) scan was arranged at the Queen Elizabeth Hospital, Gateshead to investigate whether she had any recurrence of the cancer. Fortunately that was excluded. An oncologist, Dr Verleye, wrote to her general practitioner to this effect in February 2006 and advised that she be referred to a neurologist in relation to the leg pain.
Mrs Bryce's GP duly made that referral, and she was seen by Professor Turnbull at the Royal Victoria Infirmary on 25th April 2006. She reported pain going down the back of her right leg and very limited straight leg raising on that side. Additionally, when raising the left leg she also had pain on the right side. This is known as “crossed Lasegue's sign”, and proved to be a matter of much debate during the course of the trial.
Professor Turnbull's diagnosis was sciatica and he recommended further medication for pain relief. He informed the GP that he would try and get hold of the MRI scans from Gateshead on the basis that they might have included the lumbosacral spine. Failing this, Mrs Bryce would need another MRI, specifically of her spine.
Although the GP prescribed the pain relief recommended by Professor Turnbull, Mrs Bryce's symptoms continued and worsened. The Professor was unable to obtain the Gateshead scans but asked his colleague Dr Birchall, a neuro-radiologist, to try and secure them. Dr Birchall met with success eventually but although they spoke, Professor Turnbull made no notes of the conversation. Nevertheless, Professor Turnbull said he derived reassurance from the discussion as to the issue of cancer.
Mrs Bryce's condition deteriorated further, and on the 30th May her GP made a home visit. She recorded that the patient was not experiencing any bladder or bowel symptoms, and the following day sent a fax to Professor Turnbull seeking an early review. This message was not marked urgent. It reached the neurology department at the RVI on the 31st May. Unfortunately Professor Turnbull was on leave until the following Monday, the 5th June. The evidence was unclear as to who, if anyone, saw the letter when it came in.
On the 2nd June, Mrs Bryce contacted her GP by telephone and reported a further deterioration. She had lost the feeling in her right leg and buttock. The GP reassured her and said if things deteriorated she should ring on Monday and arrange to see her.
On the morning of Saturday 3rd June, Mrs Bryce woke up with no feeling in her left leg. Her husband rang the emergency GP and took her to the out-of-hours GP centre at Bensham Hospital, from which she was referred to the Queen Elizabeth Hospital. A possible diagnosis of cauda equinus was noted and by midday on the 3rd she was transferred to a neurosurgical ward in Newcastle. An MRI scan was performed later that day which revealed a large disc extrusion at L5/S1 level, with a separated fragment of disc extending to the S1 vertebral body. There was very severe cauda equina compression, with compression of the left S1 nerve root.
This necessitated urgent surgery, which took place in the early hours of the 4th June. Mrs Bryce was given a bilateral discectomy and decompression. It was common ground that she had developed partial cauda equina syndrome, and that emergency surgery had prevented the full devastating condition from developing. Nevertheless, she was left with significant permanent symptoms.
It was alleged against the trust that Professor Turnbull, on the 25th April, failed to act upon the finding of crossed Lasegue's sign, failed to refer Mrs Bryce for immediate MRI and failed promptly to obtain the pelvic scans. Second, in relation to the faxed letter from the GP on 31st May, it was alleged that there was a failure to refer the claimant for urgent neurosurgical opinion.
The defence argued that crossed Lasegue's sign was not diagnostic of cauda equina syndrome, but only suggestive of an irritative lesion affecting the mid line of the cauda equina. In the absence of other neurological signs, this would not have been considered a case for urgent spinal imaging.
In relation to the fax of the 31st May, the trust argued that it was not stated to be urgent and did not contain any information which required urgent action.
The cauda equina are nerve roots that emanate from the spinal cord in the lumbar sacral canal. Cauda equina syndrome arises where, usually as a result of a central disc prolapse, those nerve roots are compressed. Cauda equina syndrome as a result of central disc prolapse represents an emergency. The syndrome can be complete or incomplete. If complete, there is loss of bladder function with urinary retention. If incomplete, and while bladder function is still preserved, urgent treatment can lead to improvement.
Expert evidence for the claimant was provided by Dr Davies-Jones (neurologist) and Mr Jakubowski (neuro-surgeon). The former maintained that crossed Lasegue's sign was very suggestive of central lumbar disc prolapse. Dr Goulding, the trust's expert neurologist, disagreed. He said that crossed Lasegue's sign was “suggestive but not diagnostic of an irritative lesion affecting the mid line of the cauda equina”. In his opinion, a broad body of competent neurologists would not have felt that urgent spinal imaging was indicated. He took the view that there were no red flag symptoms to suggest that urgent spinal surgery was necessary following the claimant's visit to her GP on the 30th May. However, a red flag did appear on the 2nd June, when Mrs Bryce noticed pins and needles affecting her left leg.
Dr Davies-Jones said that he always referred a patient with crossed Lasegue's sign for MRI. He accepted that it might be unusual to do so, but a large disc lesion could progress to cauda equina syndrome. While many cases of large disc prolapse were treated conservatively, it was his opinion that they should not be. Nevertheless, when pressed he accepted that many clinicians would not have carried out an MRI immediately following Professor Turnbull's initial consultation.
The Professor himself said that because there was, at the time, a 26-week delay in obtaining routine MRI scans, he felt it was sensible to check whether the Queen Elizabeth Hospital scans included images of the lumbosacral spine. He also needed to make sure that there was no evidence of recurrent tumour from the earlier cancer.
He agreed that the longstanding nature of the claimant's symptoms warranted further investigation, but not urgently bearing in mind that the symptoms were unilateral. He stressed that the fax of the 31st May did not contain any indication that urgent referral was required.
Dr Davies-Jones, for the claimant, agreed that if the GP had thought the situation urgent, she could have phoned or faxed on the 30th, when she undertook her examination. Nevertheless, he said that anyone reading the fax should have acted and brought Mrs Bryce in for urgent investigation. When it was suggested to him that it was reasonable to leave the letter such that the patient was seen early the following week, he said “there is always a reasonable of body of opinion that would have left it”.
Dr Goulding, the trust's expert neurologist, said that given the long waiting lists for MRI scans at the time, a reasonable body of surgical opinion would have acted as Professor Turnbull did. He added that there would have been many hundreds of patients with a similar level of symptoms.
In relation to the fax, Dr Goulding considered that in the absence of red flag symptoms at the time, it was reasonable to wait to see Mrs Bryce early in the following week.
The neurosurgical evidence covered much of the same ground. Mr Jakubowski, for the claimant, considered that the crossed Lasegue's sign might have been evidence of remote metastatic spread of cancer within the spinal canal. However, this was raised by him only after his meeting with Mr Byrne, the trust's expert neurosurgeon.
The neurosurgeons disagreed about the likelihood, viewed at the 25th April, of Mrs Bryce developing cauda equina syndrome. Mr Jakubowski thought it was over 50%; Mr Byrne thought it “small”.
Mr Jakubowski agreed with Dr Davies-Jones that the fax of the 31st May should have prompted emergency action. Mr Byrne, however, said he would have been reassured by the letter because the GP appeared to have conducted a thorough examination and there were no signs in it that would have lead him to bring the claimant in as an emergency.
Held: all the experts were very able and experienced in their respective fields. However, in relation to those called on behalf of the claimant, the impression they gave was that they spoke in terms of their own practice rather more than they addressed the practice of a reasonable body of opinion within the neurological specialty. Mr Jakubowski “was somewhat more involved in the forensic struggle than was consistent with giving an entirely disengaged view”.
It was never particularly impressive when a point which is alleged to be decisive emerges after the experts have had a chance in their reports to raise the issues which they believe are important. If, as appears to have been the case with Mr Jakubowski and the question of possible metastatic spread, it was an afterthought this rather suggested that it was not something which Professor Turnbull ought to have had in the forefront of his mind.
Mr Davies-Jones made concessions in the course of evidence in relation to ranges of opinion, and said at one point that you could always find someone who would take a different point of view. That was not the issue. The issue was whether a reputable body of medical opinion would hold such a view. There was no academic literature to support the view that crossed Lasegue's sign was a red flag for cauda equina syndrome, or that it indicates central disc prolapse, or a centrally oriented prolapse, or that it mandates urgent MRI or surgery. Indeed, the literature appeared to indicate the opposite.
Dr Davies-Jones had changed his opinion about what crossed Lasegue's sign ought to have indicated to Professor Turnbull, and Mr Jakubowski's report contained two wrong assumptions.
Generally, the court was inclined to prefer the evidence of the defendant's experts, whose approach seemed more rooted in the realities of NHS practice in 2006; and who appeared more mindful of the “range of opinion” test.
The suggestion that crossed Lasegue's sign required Professor Turnbull to arrange an urgent MRI was to be rejected. Dr Davies-Jones and Mr Jakubowski appeared to be describing a standard of practice which was at a much higher level than that available to a neurologist working in the NHS in 2006.
Mr Jakubowski's view as to possible metastatic spread within the spinal canal emerged in a very unsatisfactory way, which undermined the weight that could be attached to it.
In the absence of red flag symptoms, or neurological symptoms indicating central extension of the prolapse, urgent surgery would not have been viewed as necessary. At best, non-urgent surgery would take six weeks to arrange and would have come too late to save the claimant from later complications.
As to the fax of the 31st May, there was rather more evidence to justify the views of Dr Goulding and Mr Byrne than those of the claimant's experts. There was no reference to urgency in that letter, even though it was sent by fax. It was not submitted on the same day as the GP's examination and there were no red flag or neurological signs reported. The way in which the trust dealt with it did not constitute a breach of duty.
Even if the fax had been seen by a medically qualified person immediately, it would have been reasonable to refer Mrs Bryce to Professor Turnbull's next clinic, which in fact is what happened.
For all these reasons, the claim failed.
Howard Elgot (instructed by Stamp, Jackson and Procter) appeared for the Claimant. Jane Mishcon (instructed by Ward Hadaway) appeared for the Trust.
Comment
The judge decided that the contentions of the claimant's experts did not reflect the reality of the NHS in 2006. Moreover, those experts stressed what they would have done in their own professional practise, rather than addressing their minds to what a reasonable body of professional opinion at the time would have done, which is the requirement of the Bolam test. This was undoubtedly a very sad case, given the disabilities which the claimant now has for the rest of her life, but the judge accepted that there were insufficient indications to proceed on a more urgent basis than actually occurred.