Jarman v Brighton and Sussex University Hospitals NHS Trust [2021] EWHC 323
In Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors [2020] EWCA Civ 1523 (see Issue 8), the Court of Appeal considered, for the first time, a case of alleged delay in the treatment of Cauda Equina Syndrome (“CES”). CES is a medical emergency requiring urgent surgery to release pressure on the spinal nerve roots. Delay can lead to catastrophic damage. However, it is difficult to diagnose. Many people present with symptoms consistent with CES; the overwhelming majority do not have it.
Hewes did notpurport to determine any principles of general application to CES cases, which turn on their own facts. One such case was Jarman, heard by Deputy High Court Judge Coppel QC. The Claimant presented at A&E on 3 March 2015 with red flag symptoms of CES, in particular perineal numbness, but examination by an orthopaedic registrar identified no objective signs of it. The diagnosis was likely disc prolapse. She was to come back for an MRI in the “next few days” or return to A&E if she deteriorated. In the event the MRI was not performed for 15 days, and CES was confirmed. Despite surgery she was left with permanent injuries.
Breach of duty
The judge rejected the Claimant’s case that an MRI had been planned within a few days because the diagnosis was suspected CES, given the contemporaneous notes and the registrar’s evidence to the contrary [25]. Although following an MDT the MRI request had been wrongly sent as ‘routine’ rather than ‘urgent’, it had still taken place within an appropriate urgent timescale. Hence this error made no material impact. Although the scan did not take place within a few days as planned, this was poor service rather than negligence [27].
The judge also rejected the Claimant’s alternative case that she should have been diagnosed with suspected CES; noting [35]:
“CES can only be definitively diagnosed with an MRI scan. Prior to a scan, diagnosis of possible CES is a matter of clinical assessment based on symptoms and signs. However, a number of symptoms of CES are also typical of other, less serious lower back conditions. This means that the number of patients presenting with symptoms indicative of CES is far greater than the number of patients who could be scanned given conventional resource constraints.”
Both orthopaedic experts confirmed that they themselves would have sent the Claimant for an emergency scan, and it was of note that all the neurosurgical and neurology experts would have too [38]. Nonetheless, the registrar’s assessment had been “comprehensive” and “roundly praised” [39]. Moreover, no literature or guidelines supported the view that a patient with symptoms, but no signs, of CES required an emergency MRI. A 2019 study suggested that prospectively the risk of a patient presenting as the Claimant did having CES was negligible [40]-[42]. The study post-dated the alleged negligence, but there had been a trend for greater scanning since then. Ergo, a patient who would not be sent for an emergency scan in 2019 would be even less likely to have been sent for one in 2015 [43].
The Claimant’s expert’s view that a body of reasonable orthopaedic opinion would have supported a scan within four days of the Claimant’s presentation at A&E, but not thereafter, was fundamentally flawed [44]:
“Once CES is suspected, a scan should be undertaken as quickly as possible and, in effect on an emergency basis (and see the finding of the Court of Appeal in Hewes […]) There is nothing to be gained by delay (in particular the resource implications are the same for the treating hospital) and potentially much to be lost…”
The judge accepted that the expert was “guilty, to some extent at least, of framing his position to fit the Claimant’s primary legal argument”. Further criticisms of his performance in cross-examination were made by contrast with the Defendant’s expert [45]-[46].
Causation
It was the view of the Claimant’s neurosurgical expert that after the optimal window of 48 hours for surgery, the Claimant would have to show some neurological deterioration in the period of delay, otherwise the outcome would have been the same [53]. The judge noted “significant challenges” for the Claimant on causation as even if a deterioration in the relevant period could be established, “there would remain the question of whether that deterioration can be established to have caused a specific injury or measurable damage which can be identified and quantified in damages” [56]. That the Claimant had not returned to hospital was in itself evidence that her condition had not significantly deteriorated in the judge’s view [57]. Adopting a granular approach, the judge rejected each matter relied upon to evidence deterioration in the period of delay [59]-[67]. He considered some of these features were accounted for by more specialist assessments at later dates. He criticised the lack of literature to support the more high level view adopted by some of the Claimant’s other “eminent” experts that earlier surgery would have led to a better outcome [68]-[70].
Comment
A convincing win for the Defendant, perhaps fortunate that the judge was so ready to go behind the timeframe explicitly recorded for the MRI and where all the experts themselves would have ordered an emergency MRI. By contrast, the Claimant’s orthopaedic expert was rather unlucky to have been criticised for recognising a responsible body of opinion contrary to his own practice, something that might ordinarily speak to a balanced and objective view. The judge also set a high bar and adopted a stringent approach to the question of causation of damage. Others may have given more credence to the experience of eminent experts that earlier surgery generally leads to a significantly better outcome. The failure to return to hospital might also have been put aside, given the Claimant was awaiting an MRI scan and had been told she did not have CES. Of interest are the judge’s comments and recognition of the resource allocation decisions at play when determining who should get an emergency MRI. There may however be a sting in the tail for Defendants in the judge’s suggestion that once CES is suspected, a resources argument would not hold water and that the trend has been towards a lower threshold for scanning. The case is also notable for having, in common with many CES cases, a background of Part 20 proceedings since the Claimant had settled a case against her employers arising from an injury at work that precipitated her CES. This meant that additional expert evidence obtained by the employers was deployed by the Claimant, adding to the complexity of the litigation (see article covering this point in Issue 8 here).
