Rosemary Chapman v Mid & South Essex NHS Foundation Trust

JurisdictionEngland & Wales
JudgeMrs Justice Hill
Judgment Date30 May 2023
Neutral Citation[2023] EWHC 1290 (KB)
CourtKing's Bench Division
Docket NumberCase No: QB-2020-000913
Between:
Rosemary Chapman
Claimant
and
Mid & South Essex NHS Foundation Trust
Defendant

[2023] EWHC 1290 (KB)

Before:

Mrs Justice Hill

Case No: QB-2020-000913

IN THE HIGH COURT OF JUSTICE

KINGS BENCH DIVISION

Royal Courts of Justice

Strand

London

WC2A 2LL

Anna Beale (instructed by Stewarts Law) for the Claimant

Andrew Post KC (instructed by Browne Jacobson LLP) for the Defendant

Hearing dates: 20–25, 27–28 February 2023 and 7 March 2023

Further written submissions: 14 March 2023

Approved Judgment

This judgment was handed down remotely at 10.00 am on 30 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mrs Justice Hill Mrs Justice Hill

Introduction

1

Rosemary Chapman, the Claimant, has a history of lower back pain caused by a severe grade 2/3 spondylolisthesis. On 20 March 2017 she was diagnosed with a different spinal problem, namely a prolapsed thoracic disc at the T11/12 level. She underwent surgery to remove that disc on 30 March 2017. By this claim she alleges that the Defendant was negligent in that there was a delay in diagnosing and treating the prolapse. Her case is that, as a result of the delay in treatment, the prolapse progressed and resulted in paraplegia.

2

The Claimant's claim relates to two distinct periods of time: (i) her appointments with Dr Bopitiya, Consultant in the Department of Chronic Pain Management at Southend University Hospital, on 24 December 2009 and 30 September 2010; and (ii) her attendance at the Emergency Department at Basildon University Hospital on 9 March 2017, when she was assessed by an Emergency Nurse Practitioner (“ENP”), Becky Nice. A further claim against Dr Macaulay, the Claimant's GP, arising out of his assessment of her on 13 March 2017, was withdrawn by the Claimant during the trial, which was listed for determination of liability issues only.

3

In determining the issues, I remind myself that, save in respect of contributory negligence, the Claimant bears the burden of proof.

The factual background

4

The Claimant has a long history of back-related pain which began following a fall on her patio in 1998. On 5 January 2001 an x-ray confirmed the presence of spondylolisthesis at the L5/S1 level. Spondylolisthesis is a degenerative back condition in which one of the vertebrae slips forward, causing pain. On 30 August 2001 the Claimant was seen by Mr Ker, Consultant Orthopaedic Surgeon. It was recorded that her leg pain was worse than her back pain. On 31 October 2001 she was referred by Mr Ker to Mr Targett, an Orthopaedic Spinal Surgeon. It was noted that “in view of her very severe symptoms she is prepared to contemplate surgery”. On 18 January 2002 a lumbar epidural was performed but it had little effect. On 26 February 2002, she was referred to the Royal National Orthopaedic Hospital (“RNOH”) for consideration of spinal fusion. The Claimant's case is that a referral letter was sent but that an appointment was never arranged.

5

In January 2008, the Claimant was referred to the pain management service at Basildon Hospital. On 1 December 2008 she saw Dr May. Dr May noted a pain score of 66/70 for the extent of its interference with the Claimant's everyday life. He recorded that she “does not entertain the idea of surgery”. On 2 January 2009, facet joint injections were attempted. On 27 March 2009 another lumbar epidural was administered. None of these treatments provided the Claimant with long-term relief, and she managed her pain with analgesics.

6

During 2009 the Claimant's pain medication regime was adjusted several times. She left her job as a cashier and has not worked since. On 28 April 2009 she saw Dr Salako, one of her GPs. The notes record that she had ongoing back pain; had had several injections but that none had helped; and that she had declined surgery. On 7 September 2009 the Department for Work and Pensions assessed the Claimant as capable of work. She was unhappy with this and on 6 October 2009, Dr Salako referred her to Dr Bopititya at Southend Hospital for a second pain management opinion.

7

On 9 November 2009, the Claimant was assessed by the pain clinic nurse specialist at Southend Hospital, Sharon Brown. Nurse Brown recorded under the heading “Description of pain” that the Claimant had “Constant intense pain. Radiates into buttocks and both legs to feet. Beginning to radiate up back. Has shakes. If walks too far collapses. Has fallen down stairs ? leg gives way ?”.

8

On 11 November 2009, the Claimant presented to her GP complaining of “abdominal pain for last 2 weeks in right hypochondrial region…traces it to a curry she had a few weeks ago…pain is colicky”. She had slight tenderness in the right iliac fossa on examination and the GP's diagnosis was “? cholecystitis”. She was referred for an ultrasound scan of her liver and gallbladder. On 3 December 2009 the scan was performed and showed normal organs and no stones, focal lesions or obvious evidence of cholecystitis. On 30 November 2009 the Claimant's GP completed a wheelchair assessment form for her.

9

On 24 December 2009, she was reviewed by Dr Bopitiya. His subsequent letter to her GP indicated that his examination of her had been limited because she was in a wheelchair. His treatment plan was as follows:

“…her type of pain has to be managed with a multi-disciplinary approach and she will need to see our psychologist for initial individual sessions and possibly at some stage receive physiotherapy input. In the longer term she may be suitable for the Pain Management programme. I have also explained that at this stage surgery or injections is not going to help her pain.”

10

On 29 June 2010, the Claimant attended a clinical psychology clinic, but no assessment took place because the Claimant felt that psychological input could not help her symptoms. She was referred back to Dr Bopitiya.

11

On 30 September 2010 the Claimant saw Dr Bopitiya again. He did not examine her. His 4 November 2010 letter to her GP recorded his advice as follows:

“She will need to work with either the physiotherapist in terms of hydrotherapy and the Fitness Group to become more mobile and obtain a good quality of life and improve her ADL [Activities of Daily Living] or see a surgeon to consider surgical options, which I have discussed in detail with her, however she is not keen on having surgery.”

12

Although the Claimant was due to see Dr Bopitiya after she underwent physiotherapy, no further appointments with him took place.

13

After November 2010 the Claimant had more limited medical attendances. On 7 February 2014 Dr Macaulay noted that she was “very upset the way [sic] she had been treated by psychiatrist and pain clinic, in connection with her back pain, and not prepared to attend for any referrals to any stakeholders anymore”.

14

In early 2017, the Claimant's husband was injured in a car accident. At this time, she rarely left the house due to her pain, but she began to do so in order to visit him in hospital.

15

On 8 March 2017 the Claimant collapsed in the bathroom at home. She said her legs gave way. Her husband telephoned her GP and Dr Macaulay recorded that she had “collapsed in toilet with pain”. He advised her to attend the Accident and Emergency (“A&E”) department at hospital.

16

On 9 March 2017, the Claimant's husband called an ambulance. Her case is that her legs had given way again when she tried to go to the toilet, she was in excruciating pain and had begun to have bladder accidents. At around 4 pm the ambulance attended. The ambulance staff recorded the following under “History/MOI”: “Ongoing back condition +++ onset pain in back. L5 [circled]. Pain +++ on movement. Pain in kidney region”. A further note on examination recorded “pt c/o pain in usual area on back & kidney area, worse on movement. Pt able to twist to side”. It was recorded that there had been no incontinence, there was no saddle anaesthesia and “BO + PU” [bowels open and passed urine].

17

At 5.08 pm the Claimant arrived at Basildon Hospital. She was triaged and then seen by ENP Nice at 7.05 pm. The Claimant's case is that contrary to ENP Nice's notes, she did not conduct the detailed examination that she had recorded; instead, ENP Nice explained that she was pregnant, and that as a result she could not fully examine the Claimant; that her examination was limited to asking the Claimant to move her own legs, and then moving the Claimant's legs to see whether she could push back; and that ENP Nice incorrectly recorded that the Claimant was able to take steps, when she was not.

18

ENP Nice recorded her clinical impression as being “soft tissue inflammation” and “worsening of long-term condition”. Her plan was to send the Claimant home, with her GP “follow[ing] up for further management”. The consultation with ENP Nice concluded at 7.58 pm. The Claimant was taken home by ambulance, the notes recording “Transport booked for pt to go home as struggles in car.”

19

The Claimant's recollection is that following the hospital attendance, she began experiencing pins and needles in her legs and problems with both her bowel and bladder.

20

At 9.54 am on 13 March 2017, the Claimant's husband telephoned the GP surgery. Dr Macaulay visited her at home. His note of the consultation reads:

“History: severe back pain, incapacitating, no recent fall or injury.

Examination: tender rt side back slr test 40 degrees.

Diagnosis: back and hip pain.

Plan: urgent mri scan back and pelvis.

Adv on medication and pain relieve [sic].”

21

At 12.36 pm on 15 March 2017, the Claimant's husband rang the GP surgery again. The note records:

“History: husband called to say that wife cannot move the legs and have advised to call 999; asap.

Felt reluctant to do; and accepted.

Also told will fax the urgent referral for mri scan.

Plan: advised again to call 999 since cannot move the legs, to go...

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1 cases
  • Rosemary Chapman v Mid and South Essex NHS Foundation Trust
    • United Kingdom
    • King's Bench Division
    • 20 July 2023
    ...and by release to the National Archives. Mrs Justice Hill Mrs Justice Hill Introduction 1 By a judgment handed down on 30 May 2023 at [2023] EWHC 1290 (KB) (“the liability judgment”) the Claimant's clinical negligence claim in respect of her examinations by Dr Bopitiya, Consultant in the D......

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