Barry Frederick Hewes v West Hertfordshire Acute Hospitals NHS Trust

Hearing dates: 4–6 November 2020

Introduction

This is an appeal from a decision of Anne Whyte QC, sitting as Deputy Judge of the High Court (‘the Judge’). Leave to appeal was given by McCombe LJ on 13 December 2019 on five out of seven grounds.

On this appeal, the Appellant (who was the Claimant below) was represented by Mr Booth QC and Mr McLeish. The first and second Respondents, West Hertfordshire Hospitals NHS Trust (‘Trust 1’), and East of England Ambulance Service NHS Trust (‘Trust 2’) were represented by Mr Hutton QC and Miss Power. The third Respondent, Dr Pankaj Tanna (‘the GP’), was represented by Mr Antelme QC and Miss Woodbridge. I thank all counsel for their written and oral submissions.

Paragraph references are to the paragraphs of the Judge's judgment, unless I say otherwise.

The facts

This summary is closely based on the facts found by the Judge. As she recorded, the claim concerned the management of the Claimant's case by all three Respondents on one day, 12 March 2012.

Cauda equina syndrome (‘CES’)

As the Judge explained in paragraph 2, cauda equina syndrome (‘CES’) is commonly caused by the prolapse of a large disc in the spinal canal. This compresses a bundle of nerves which transmit messages to and from the bladder, bowel, genitals and saddle area, interfering with sensation and movement. Once it has been diagnosed, it is seen as an emergency, because unless the pressure on the nerves is released quickly, they can be damaged permanently. A clinical diagnosis of CES is confirmed by an MRI scan.

There is a group of symptoms, described as ‘red flags’, the presence of which may lead a clinician to suspect CES. Often, as in this case, a patient has severe pain in his lower back, and sciatica. The red flags include numbness (or hypoaesthesia) in the saddle/peri-anal, or genital area, or in the urethra. Most patients who go to an accident and emergency department (‘A and E’) with suspected CES are not, in fact, suffering from it. There are different types of CES, depending on the extent of nerve damage. These include CES Incomplete (‘CESI’) and CES Complete, or Retention CES (‘CESR’). All patients with CES experience a continuous deterioration, but the rate of deterioration varies between patients. Sometimes the deterioration is complete within hours. Other patients' CESI never reaches CESR. It was agreed that, in general, on balance of probability, the outcome of surgery for patients with CESI tends to be good, whereas it tends to be poor for patients with CESR. It is therefore vital, once a clinician suspects CES, that an MRI scan is done as soon as possible (or as soon as is reasonably possible), and that, if CES is found, the patient has decompression surgery as soon as possible (or as soon as is reasonably possible).

The background facts

The Judge said (paragraph 5) that the background facts were only disputed to the extent which she indicated in her summary (paragraphs 6–17). The Claimant is 50. He has a history of pain in his lower back. An MRI scan taken in January 2012 showed bulges in two discs (L4/5 and L5/S1). He was given a caudal epidural on 22 February 2012. On 11 March 2012, he went to an Urgent Care Centre (‘UCC’) in Hemel Hempstead with worsening back pain. He was seen by an out-of-hours GP and given a prescription. He was told to consult his GP if he became worse, and that, if he became numb, that would show that he needed immediate hospital treatment.

The Claimant went to bed at 0100 on Monday 12 March. He had urinated just before he went to bed. He woke at about 0500 in pain. His groin had become numb. His wife called the UCC at 0543. She called an ambulance at 0602. She spoke to one of Trust 2's operators.

At 0604, the GP, who was an out-of-hours GP, spoke to the Claimant on the telephone for about five minutes. Out-of-hours is a very busy service generally. There would probably have been a queue behind the Claimant of between 10 and 20 calls.

At the start of the call, the Claimant said that in the last hour he had ‘developed numbness in my bum and leg’. The numbness went down his left leg to his calf and he had pins and needles in his foot. He was asked whether he had had any difficulty, or accidents, in urinating or in opening his bowels. He said that he had not. He had not, however, tried to urinate that morning, and it was painful to sit on the toilet.

The GP asked the Claimant where exactly the numbness in his bum was. The Claimant said that it was in his left buttock and all the way down his leg. The GP explained that he was particularly interested to know whether the Claimant felt numb around his back passage, genitalia and groin. The Claimant said that his testicles felt numb. The GP recommended that he go to Watford General Hospital (‘the Hospital’) immediately as that was where the A and E department was. They would organise an urgent scan there, and get him to see an orthopaedic doctor.

The GP specifically told the Claimant that it would not be helpful to go to the UCC. The Claimant told the GP that he would go to the A and E department at the Hospital. The GP explained that there were important nerves which could get pinched. That was ‘more serious’, and could lead to symptoms in the bowel, bladder, anus or genitalia. If the Claimant was getting those symptoms, he should go to the A and E department at the Hospital. The GP's notes record that he considered that this was potentially a case of CES (‘??’) and that he had advised the Claimant to go to the A and E department at the Hospital for an urgent review. He also recorded that the Claimant had ‘no abdo pain, no urinary/bowels sx [symptoms], no numbness in perianal area, reports developed numbness under genitals/saddle area in the past 1 hr, and pain increasing ++’.

The Claimant's wife spoke to Trust 2's clinician at 0632. The clinician arranged for an ambulance to be sent under normal road conditions. It arrived at the Claimant's home at 0721, left at 0738, and arrived at the Hospital at 0819. He was handed over to Trust 1's care at 0827. Trust 2's handover sheet recorded numbness in the Claimant's left buttock, leg and foot. The Claimant was seen by Dr Roffey, an FY2 A and E (that, is a junior hospital doctor who was in his second year of his foundation training) at 0920 in the ‘Majors’ area of A and E. He noted the report of saddle numbness and that there had been no obvious disturbance of the Claimant's bowel or bladder. On examination, he found ‘good anal tone’. He did not diagnose CES, but referred the Claimant for orthopaedic assessment in the light of ‘new neurology’. His treatment plan included pain relief and admission for a further scan. His notes record that the Claimant was ‘accepted’ in the orthopaedic department at 1040. No allegation of negligence was made against Dr Roffey.

The Claimant was next seen by Dr Kirkby, who was in the first year of her foundation training, and who was an on-call orthopaedic doctor. The Judge recorded that there was an issue about when Dr Kirkby assessed the Claimant. The Claimant believed it was at about 1000, whereas Dr Kirkby thought that it was nearer 1040. Dr Kirkby examined the Claimant. She noted that the Claimant's groin was numb and that he had not opened his bowels or urinated since the previous evening. She noted that the Claimant's perianal area was not numb and that his anal tone was normal. The Claimant's wife could remember Dr Kirkby examining the Claimant's rectum, but she remembered that, when asked, he had said that he could not feel that examination.

Dr Kirkby's notes referred to the Claimant's recent medical history and to the fact that he was under the care of a consultant, Mr Dyson (a member of Trust 1's orthopaedic team). Her note described what had happened when the Claimant had gone to the UCC the day before. Under the heading ‘Problems and Diagnosis’ she wrote ‘L5/S1’ bulging and L5/SI protrusion, ? Cauda equina’. She discussed her management plan with Dr McKenzie, the Registrar. It included an MRI scan, x-rays, pain relief, ‘Bladder scan-? Retention’ and ‘nil by mouth’ in case surgery was needed, and a discussion with the Registrar ‘re cauda equina’.

The Claimant was given morphine at 1045, which relieved his pain. Dr Roffey filled in forms asking for an x-ray and MRI scan ‘probably on instruction’. The Claimant was given a spinal x-ray at 1123. At 1159 a form asking for an MRI scan was put into the Computerised Radiological Information System (‘CRIS’). That form did not refer to a diagnosis of CES or possible CES and was not marked urgent. The Claimant alleged that that was negligent. The Claimant had a bladder scan at 1203. The volume of his bladder was recorded as 621 ml. The Claimant was advised by a nurse to try to urinate,...