Abstract
Background
The Claimant had a history of back problems and had undergone previous spinal surgery. His symptoms had flared up again in 2006 prompting a private referral to Mr Jepson (D2) in June, who did not recommend surgery at that stage. Facet joint injections produced temporary relief and the Pain Clinic requested an MRI scan on a non-urgent basis.
Before the scan could be performed, the Claimant attended the A&E department at the Trust (D1) on 27 August 2006, arriving at 21:00 hours, having fallen at home. He was admitted onto an orthopaedic ward just after midnight, at which time it was recorded that he had passed urine within the last 4 hours.
The ward round at 08.00 hours on 28 August prompted no further action. At 12:20 hours the Claimant was complaining of numbness, had not passed urine and a bladder scan revealed 999 mls of urine. A catheter was inserted at 13:00 hours, draining 1000 mls of urine. At ward round on 29 August the possibility of cauda equina syndrome was raised and an MRI scan was performed on 30 August, confirming an uncontained disc extrusion at L3/L4 and cauda equina compression. The Claimant was transferred to Leeds and surgery was performed there just before midnight on 30 August.
Breach of Duty
Against D1 it was alleged that there was delay arranging an MRI scan and diagnosing the cauda equina syndrome. As against D2 it was alleged that there was a failure to consider the possibility of a recurrent disc prolapse and referral for an MRI scan.
The case against D2 was withdrawn on the last day of trial due to lack of supportive evidence from the Claimant's experts.
D1 admitted breach of duty from 13:00 hours on 28 August 2006 and accepted that an MRI should have been requested urgently at that stage which would have revealed the compression.
The judge found on the evidence presented to him that in fact this MRI scan should have been requested at the ward round at 08.00 on 28 August.
Causation
The Claimant's case was that surgery performed on 28 or early 29 August would have produced a good outcome.
The Defendants had obtained a urological report from Dr Lemberger (Consultant Urologist) who had identified that the Claimant was likely to have gone into urinary retention at some point between midnight and 07:00. Dr Lemberger's conclusions had been accepted by the Claimant's neurosurgical expert.
The judge accepted that evidence and found that the Claimant had been in urinary retention by 07:00. He accepted that this represented the point at which the Claimant reached CESR (Cauda Equina Syndrome with Urinary Retention). The issue hinged on whether surgery could, on a balance on the probabilities, have made any difference once that point had been reached.
The defence case was that once CESR is reached, on a balance of probabilities, surgery will not produce a good outcome. Whilst in a minority of cases some improvement can be obtained, in the majority of cases it will not, because damage to the nerves is complete.
The Claimant's expert neurosurgeon conceded in cross-examination that the prospect of a good recovery had surgery been performed once CESR was reached was less than 50%.
The judge was referred to the decision of Akenhead J in Oakes v Neininger & Others (2008) EWHC 548 (QB) who held that the Claimant had not reached the stage of CESR when surgery could have been performed and delay was therefore culpable. Akenhead J indicated that he would not, however, have found for the Claimant if CESR had been reached.
The judge concluded that the evidence was plain that, on a balance of probabilities, the Claimant would never have made a good recovery following the onset of CESR and that the three-day delay in surgery was immaterial.
Finally, the judge was not prepared to make a finding that the delay in surgery had left the Claimant in a worse condition than he would otherwise have been. The evidence in support of that was vague and speculative. He accepted the evidence of the Defendant's neurosurgeon that, on a balance of probabilities, no measurable improvement would have been achieved by surgery performed on late 28 August/early 29 August.
The Claimant's case was therefore dismissed.
Timothy Hartley (instructed by Morrish Solicitors) appeared for the claimant. Charles Feeny (instructed by Hempsons) appeared for the trust.
Comment
The judge was very critical of the hospital's failings on the morning of 28 August in particular, commenting that the failure to order an MRI scan then was ‘impossible to understand’, given the suggestion of Cauda Equina Syndrome which had been entertained both by the emergency GP and by the junior A/E doctor the previous evening. Indeed, he held that the total period of culpable delay by the trust was of the order of 48 hours. Nevertheless, the expert evidence pointed overwhelmingly to the fact that this culpable delay did not cause CESR or prevent its reversal, because the die had already been cast.