Wed, 11 Dec 2019
Clinical negligence experts from No5 Barristers’ Chambers have seen the successful conclusion of a claim involving Cauda Equina Syndrome with damages agreed at around £1.5million.
Jonathan Jones QC and David Tyack, with Moosa Duke solicitors, represented the claimant, 37, who had a long history of back pain.
The defendant NHS Trust was represented by Michael de Navarro QC and Nina Unthank.
Her Honour Judge Hampton, sitting as a High Court Judge in Leicester, handed down a judgement in favour of the claimant against the University Hospitals of Leicester NHS Trust following a 13-day trial.
The claimant has permanent and significant long-term problems, namely bowel and bladder incontinence, sexual dysfunction, a foot drop, severe lower limb pain and significant mobility issues.
In summary, the claimant’s claim was that she had permanent Cauda Equina Syndrome (CES), which should have been suspected from the time of her first admission at Leicester Royal Infirmary. An MRI scan was wrongly reported, and she should have undergone an emergency decompression.
The defence team stated that the scan was correctly reported, denied a breach of duty and claimed that the claimant does not have CES but a Functional Neurological Symptom Disorder which explained her symptoms. Alternatively, the defence stated that, if the claimant had CES caused by a delay in decompression, this only caused the bowel and bladder symptoms. Her mobility and pain issues were caused by Failed Back Surgery Syndrome.
HHJ Hampton found that there were breaches of duty, and that an MRI scan had not been accurately reported. As to causation, the Judge found that had the claimant undergone a timely decompression, she would have avoided her bowel, bladder and sexual dysfunction, but that she would have had the same lower limb pain and mobility problems that she had.
David Tyack said the judgment raised three specific points of interest for claimants and for general application beyond Cauda Equina cases.
- The Judge did not find, as the defendant invited her to, that the inconsistencies in the medical notes undermined the claimant’s case that she had reported symptoms of CES. This finding is of assistance to claimants in cases where it is alleged that inconsistent accounts of symptoms in medical records underline the claimant’s reliability and/or case as to causation.
- In support of her findings as to breach of duty and causation, the Judge found that although the MRI scan did not show “unequivocal CES,” the fact that the MRI scan showed a narrowed thecal sac and “clustered together” S2 and S3 nerve roots, along with the reported signs and symptoms, should have led to an urgent decompression. The Judge also accepted the expert evidence that a prolapsed disc can cause symptomatic inflammation of a Cauda Equina nerve root, but which may not necessarily be seen on an MRI scan. These findings suggest that clinicians should not be overly prescriptive or inflexible in the criteria they set for concluding that a patient may be suffering from CES.
- As to quantum, the agreed evidence was that from age 70, the claimant would lose her ability to self-transfer independently and would require 24-hour care. The care evidence also suggested that the claimant would reasonably require 24-hour care from age 70 on account of her bowel and bladder symptoms alone. Given the Judge’s finding as to causation (that mobility and lower limb pain problems were not caused by the breach of duty) the claimant would have needed 24-hour care even absent the negligence. However, by reference to the principal in the case of Reaney v University Hospital of North Staffordshire NHS Trust  EWCA 1119, the Judge found that the claimant was entitled to the cost of 24-hour care from age 70 on account of her bowel and bladder problems, which had been caused by the breach of duty. Importantly, the Judge found that the type of care was qualitatively different from the care that the claimant would have needed absent the negligence and the claimant was entitled to recover in full for 24-hour care.
Mr Tyack added: “This is an important early application of the Reaney principle. It should be noted that the claimant did not need ‘hands-on’ care in relation to her bowel and bladder symptoms consistently for 24-hours a day. Here a carer would be ‘on call’ to provide assistance with bowel and bladder dysfunction as and when it was needed. However, actual hands on care would not approach anything like 24 hours per day. The practical implication of this ruling is that where a carer has to be ‘on call’ all the time to provide care of a different quality to that which would have been needed but for the negligence, the claimant is likely to be able to recover damages for 24-hour care, regardless of what are the care needs he or she would have needed absent the negligence.”