Abstract
The Claimant was seen, successively, as a private and an NHS patient by Mr Maurice, a consultant orthopaedic and spinal surgeon, in March 2005.
At the end of February 2005, Mr Newman began to feel unwell following a weekend in Prague. He had flu-like symptoms, but deteriorated quite rapidly and his wife became concerned when he started to complain of numbness in his torso. She spoke to Mr Maurice who arranged to see him privately at Gatwick Park Hospital on 2 March. The consultation note described increased temperature, some difficulty urinating and numbness in the perineum. Mr Newman complained of neck stiffness and headache the previous day, but no photophobia. He was pyrexial. There were no signs of neural deficit. Mr Maurice suspected an epidural abscess, as he had given the patient a steroid injection and manipulation under anaesthetic as recently as 11 February following worsening back problems.
Mr Newman was admitted to Gatwick Park as an emergency, and an urgent MRI scan was arranged together with blood tests. Test results were consistent with a severe infection. The MRI scan revealed evidence of an epidural abscess at L2 level, as Mr Maurice had suspected, together with infection and a possible small abscess behind the sacro-coccygeal junction. The bladder and prostrate were enlarged.
Mr Maurice concluded that there was extensive and serious infection of the spine, and considered that the primary site of the infection was the abscess around the sacrococcygeal area, because that was site of the injection on 11 February.
Mr Maurice decided upon a high dose of antibiotics and aspiration of the infected area, so as to drain the pus and to identify the infection. Only 1 mL could be aspirated, described as ‘foul-smelling brown fluid’. Mr Maurice decided against surgery. A significant reason for this decision was that there was no evidence of neurological compromise or impairment.
Early on the morning of 3 March, Mr Maurice saw the patient again and decided to maintain conservative treatment. Mr Newman appeared slightly better, as a consequence of antibiotics, and there was still no evidence of any neurological deficit.
The result of another MRI scan came through later that morning, and this revealed an extension of the epidural abscess to T10/11 and some enhancement of the meninges between T9 and L1. A chest X-ray revealed the possibility of infection, but probably no pulmonary embolism.
Mr Maurice then decided that the patient should be transferred to the NHS East Surrey Hospital for the abscess in the sacrococcygeal region to be drained. Transfer took place at 18:40 on 3 March.
Further blood tests on arrival at East Surrey revealed increasing infection. Mr Maurice proceeded with the planned operation to excise and drain the abscess. The operation note described a 4×4 cm necrotic area, which was excised. There was evidence of necrotizing fasciitis.
Unfortunately, Mr Newman's condition deteriorated, albeit that there remained no neurological concern. By 7 March he had developed severe respiratory failure. Further surgery to drain the remaining infection took place on 8 March.
Mr Newman remained very ill with systemic sepsis, although fortunately he eventually came through, but not without some long-term deficits which continued to affect him.
It was alleged on behalf of the Claimant that extensive surgery to excise and drain the whole of the infection should have taken place on 2 March, when Mr Newman first presented. It was claimed that the decision to delay surgery was negligent.
The respective experts agreed than an epidural abscess is a rare condition, and that the cause was the injection on 11 February, an even rarer eventuality. It was accepted on behalf of the Claimant that Mr Maurice was correct in his initial history-taking, examination, diagnosis and choice of antibiotics. The case turned upon the choice between medical or surgical treatment, and the time at which the latter was undertaken.
The Claimant's expert neurosurgeon was Mr Todd, described by the judge as ‘very experienced and eminent’. However, Judge Platts commented: ‘I did find that his approach was generally unduly dogmatic’ and that this expert was ‘somewhat an advocate for the claimant's cause rather than doing his best to assist the court’.
The expert called by Mr Maurice's medical defence organization was Mr McFarlane, a consultant neurosurgeon, described by the judge as ‘straightforward and clear in his evidence’, who was ‘trying to assist the court’. The trust's expert, Mr Bradford – another consultant neurosurgeon – was ‘more diffident in manner than his distinguished colleagues but … no less impressive as a result’. Overall, the judge preferred the evidence of Mr McFarlane and Mr Bradford to that of Mr Todd.
Held: ‘I am far from persuaded that when balanced against the risks of surgery there was sufficient objective or indeed subjective sign of neurological compromise to suggest that for this reason surgery to drain the epidural abscess should have been performed after admission on 2 March.’ Such symptoms of possible neurological deficit as there were, e.g. numbness in the perineum, were mild and equivocal. They merited continued observation but not major surgery at that point.
By the morning of 3 March, the neurological situation had improved. It was reassuring, and therefore the argument that surgery should have been performed early on 3 March could be rejected.
Further, on 3 March there was evidence of infection in the pre-sacral space. This would not have been accessible by surgery. Inflammation and involvement of the cauda equina nerve roots also could not have been dealt with surgically. Mr Maurice's decision was, therefore, justified.
After the decision to proceed to operate solely on the sacrococcygeal area on the evening of 3 March, and not on the epidural abscess, while Mr Newman had deteriorated systemically despite antibiotics, there was still no evidence of neurological compromise. The decision not to drain the epidural space could not be criticized as being irresponsible, unreasonable or illogical. Mr Maurice's practice was in accordance with a responsible body of spinal surgeons, as represented by Mr Bradford who said he would have done exactly the same.
An allegation which had never been pleaded, namely that extensive surgery should have been performed because of the suspicion of necrotizing fasciitis during the operation on 3 March, was made late in the day and was somewhat opportunistic. Indeed, it was raised as a consequence of the oral evidence of Dr Brown, the consultant microbiologist called by the Claimant. The judge concluded: ‘I am not persuaded that a consultant microbiologist, however eminent and persuasive in his evidence, can realistically or properly comment on the clinical judgement of a consultant spinal surgeon making a decision about whether or not to operate and, if so, to what extent’.
In any event, the Claimant's expert neurosurgeon, Mr Todd, had not identified the appearance at surgery of necrotizing fasciitis as being of itself a reason for more extensive surgery. There was no evidence that the necrotizing fasciitis had spread any further, and this allegation could be rejected.
Overall, while other surgeons would have adopted a different course, that was not enough to establish breach of duty. Mr Maurice had approached Mr Newman's treatment with care and consideration. Indeed, his actions by treating with antibiotics and operating on 3 March probably saved the patient's life. He could not properly be held responsible in negligence for not doing more.
In view of this finding on breach of duty, it was not necessary to rule on causation. However, since Mr Newman had already developed necrotizing fasciitis by the evening of 3 March, which was the principal source of his illness, and since it was clear that sepsis and toxicity were already well-established, the court was not persuaded on the balance of probabilities that any significant change in the Claimant's condition would have been achieved by earlier or more extensive treatment. There would, therefore, be judgment for the Defendant.
Michael Mylonas (instructed by Irwin Mitchell) appeared for the Claimant. Edward Bishop (instructed by the MDU) appeared for Mr Maurice. Andrew Kennedy (instructed by Capsticks) appeared for the Trust.
Comment
As the judge said, it is not sufficient for a Claimant to demonstrate that some surgeons would have proceeded in a different way to succeed on breach of duty. Rather, the Claimant must prove on the balance of probabilities that what the Defendant did was not supported by a reasonable body of surgical practitioners at the time. This was always going to be a difficult argument to get off the ground, owing to the lack of clear adverse neurological signs on 2 and 3 March. It is obvious that extensive surgery attracts higher risks for the patient than more limited surgery, and therefore the judge concluded that Mr Maurice had not been negligent. Much, as so often in clinical negligence cases, turned upon the expert witnesses, and it is clear that the judge was impressed by the character and evidence of the defence neurosurgeons, and that he was somewhat troubled by the Claimant's microbiologist expressing a view as to surgery!