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A First Meeting: The Court of Appeal and Cauda Equina Syndrome

Legal Update: a review of the decision in Hewes v (1) West Hertfordshire Hospitals NHS Trust (2) East of England Ambulance Service NHS Trust and (3) Dr Tanna [2020] EWCA Civ 1523

Written by Jonathan Godfrey.

The Court of Appeal provided invaluable guidance and practical assistance regarding evaluating the trial judge’s findings within the boundaries of the appeal process. It re-emphasised that any appellant has a very onerous position to overcome in challenging the findings of a trial judge who has listened to the evidence and resolved the disputes between respective experts. There are significant obstacles to surmount.

This was, as far as is known, the first case directly relating to the treatment of cauda equina syndrome (“CES“) to come before the Court of Appeal. The Court rejected any notion of providing general guidance on the management of cauda equina cases.

Clinical Preamble of CES set out in the Court of Appeal Judgment

CES is commonly caused by the prolapse of a large disc in the spinal canal. It compresses a bundle of nerves which transmit messages to and from the bladder, bowel, genitals and the saddle area, interfering with sensation and movement. It derives its name from the Latin, cauda equina or “horse tail“, the bundle of nerves resembling that particular anatomy . Having been diagnosed, CES is seen as a medical emergency, because unless the pressure on the nerves is released quickly, they can be damaged permanently. There are different types of CES depending on the extent of nerve damage that has been caused. These include CES Incomplete (“CESI“), and CES Complete, commonly known as Retention CES (“CES-R“). All patients with CES experience a continuous deterioration, but the rate of the deterioration varies as between patients. Sometime the deterioration is complete within in matter of hours.  In other patients CESI never reaches CES-R. In the context of the case, it was agreed that, in general, on the balance of probability, the outcome of surgery for patients with CESI tends to be good, whereas it tends to be poor for patients with CES-R. It is vital that once CES is suspected and MRI is undertaken as soon as is reasonably possible, and that if CES is discovered, that the patient undergoes decompression surgery as soon as is reasonably possible.

The Facts

The facts mirrored that which is often seen in CES cases. The Claimant, who was 50 years of age, suffered from a history of low back pain with radiologically confirmed disc protrusions in his lumbar spine at L4/5 and L5/S1. He had been given a caudal epidural on 22nd February 2012. On 11th March 2012 he attended an urgent care centre with worsening back pain, where he was seen by an out of hours GP. He was told to consult his GP if matters worsened, and if he became numb, that immediate hospital treatment was needed.

 The matters in issue arose on 12th March 2012. On that day, at about 1.00am the Claimant went to bed. The Claimant awoke at or about 5am in pain and with numbness in the groin area. He called the out of hours service and spoke to Dr Tanna, a GP, at about 6am, and informed him about developing numbness in the bum and leg. Dr Tanna made the realisation that the Claimant had symptoms associated with cauda equina. He recommended that the Claimant visit A&E immediately. They would organise an urgent scan and get him to see an orthopaedic doctor. The Claimant’s wife called an ambulance at 6.32am and spoke to a clinician who arranged for an ambulance to be sent. The ambulance arrived at the Claimant’s home at 7.21 am and left at 7.38am. He was taken to Watford General Hospital where he arrived at 8.19am.

The Claimant was reviewed and examined by a FY2 doctor (a junior doctor in the 2nd year of his foundation training) in A&E at 9.20am, who referred him onto the orthopaedic team. No negligence was alleged in the claim as against the FY2 doctor. The Claimant was eventually seen by the orthopaedic on call doctor, Dr Kirkby, who was in the first year of her foundation training. Dr Kirkby thought that she examined the Claimant at about 10.40am. She undertook a clinical examination and discussed his case with an orthopaedic registrar “re cauda equina“. The plan evaluated was to send the Claimant for an x ray and MRI scan. A spinal x ray was undertaken at 11.23am. At 11.59am a form requesting an MRI scan was placed into the hospital’s Computerised Radiological Information System (“CRIS“). The form made no indication of possible CES and was not marked urgent. The Claimant alleged that this was negligent. A bladder scan was undertaken at 12.03 pm.

The Claimant’s details were inputted into CRIS at 1.26pm. An MRI scan was undertaken at between 1.33pm and 1.50pm. This was about 90 minutes post the request placed into the computerised system. The plan was that there should be an urgent discussion with the orthopaedic consultant “for theatre today impression: cauda equina“. The scan showed a massive L5/S1 disc herniation occupying the majority of the central canal. A discussion was had with the he National Hospital for Neurology and Neurosurgery in London (“QSH“).  A nursing note at 6pm showed that CES having been confirmed, an urgent transfer was arranged to QSH. The Claimant arrived at QSH at 8.09pm and was taken to theatre at 10.30pm. Surgery was commenced by way of decompression surgery at 11pm.  Despite the treating clinicians’ best efforts, the Claimant was left with residual symptoms of cauda equina.

It is worth noting in the context of the case that followed, that there was an approximate 17-hour period between when Dr Tanna suspected cauda equina and the surgery being carried out.

The Claimant brought a claim alleging that:

  1. Dr Tanna, the GP, should have contacted Watford General Hospital to ensure that the Claimant could bypass A&E and be seen straightway by Orthopaedics;
  2. The Second Defendant, the ambulance service, should have prioritised the need for transfer to hospital, and in not doing so, caused a delay in his transfer of 19 minutes ; and
  3.  The First Defendant managed his case negligently. He was a potential surgical emergency. He was not seen quickly enough whereby investigation and treatment was delayed. Once Dr Kirkby had suspected CES, she should have called for Consultant opinion, arranged an urgent MRI scan, marked the MRI scan request form as urgent, and mentioned CES or suspected CES. The Claimant’s MRI scan should then have interrupted the list of elective scans inputted.

It was alleged that each Defendant had caused the Claimant permanent and unavoidable injury and loss of function. It was the Claimant’s case that he had not developed urinary retention, CES-R, at the point which, absent the negligence, he should have been operated upon. Had he been operated on sooner, on the balance of probabilities, it was contended that he would not have suffered the injuries that he did.

The First Instance Judgment

The matter was heard by Anne Whyte QC, sitting as a Deputy Judge of the High Court. The trial lasted 6 days.

To set out the detailed reasoning and assessment of the evidence by the trial judge would occupy many more pages than this article allows, suffice to say however, that the trial judge made no findings of any breach by any of the Defendants, albeit that there was an admitted delay in transfer by 19 minutes by the ambulance service, but which was agreed made no difference causatively to the outcome, if the only avoidable delay, being de minimis.

The trial judge also found that in any event, the decompression surgery could not reasonably have been undertaken in such time as to make any difference to the eventual outcome.

Appeal

The Claimant appealed on a number of grounds. A precis summary of the grounds upon which permission was granted by McComble LJ are:

  1. The trial judge erred in law and in fact in holding that the GP, Dr Tanna, did not breach his duty of care;
  2. She erred in both respects in deciding that the Claimant had not proved factual causation as against the GP, Dr Tanna;
  3. She erred in both respects in not drawing adverse inferences as against the First Defendant from the absence of any evidence of a discussion between the orthopaedic and radiology departments about the urgency of a MRI scan for the Claimant, or about the priority to be given to patients;
  4. She erred in both respect in her decision on factual causation as regards to the First Defendant; and
  5. She erred in both respects in holding that the Claimant had failed to establish legal causation as against any of the Defendants.

In granting permission to appeal on the grounds highlighted, McCombe LJ acknowledged that the judgment of the trial judge was “carefully reasoned“ and that he had considered whether it was appropriate to give permission to appeal on any grounds, as to a significant degree, they involved challenges to findings of primary fact, and assessment of those facts. The skeleton argument had however convinced him that there was more than a merely fanciful chance of success.

Reasoning in the Court of Appeal

The appeal lasted 3 days. The Court of Appeal soundly rejected the grounds of appeal wholeheartedly endorsing the findings and reasoning of Anne Whyte QC, reached at first instance.

Elisabeth Laing LJ giving the lead judgment identified that “the question for the court on this appeal is whether the decision of the judge is wrong. Nevertheless, an appellant in an appeal such as this is not free to invite the court to re-visit the whole case, and to stand in the shoes of the first instance judge“.

It was specified that in Perry v Raleys Solicitors [2019] UKSC 19 at Paragraph 52, Lord Briggs JSC, said, that in considering whether the judge at first instance had gone wrong in their decision on the facts to an extent which enabled the Court of Appeal to intervene was “whether there is no evidence to support a challenged finding of fact, or that the finding was one which no reasonable trial judge could reach “.

It was noted that the trial had lasted 6 days and that there were pages of pleadings, witness statements, experts’ reports and academic literature for the trial judge to absorb before the trial and to reflect upon having reserved judgment.  Laing LJ referred to the fact that “this appeal is not a wholesale opportunity to revisit in detail, her findings of fact, her evaluative assessments, or her mixed findings of fact and law “. She went on to emphasise and quote Lewison LJ’s dicta in Fage UK Limited v Chobani UK Limited [2014] ETMR 26, at paragraph 114 “in making his decisions the trial judge will have regard to the whole sea of evidence presented to him, whereas an appellate court will only be island hopping “.

Laing LJ emphasised that the appellate court is not in the same position as the trial judge was for many reasons, namely:

  1. She was able to evaluate the witnesses as they gave their evidence. There are many aspects of a witness’s responses to questions, such as evasiveness, that are not visible from the court transcript;
  2. She was entrusted with making findings of primary fact, both where there was a dispute about the evidence, and where there was a gap in the evidence;
  3. Her job was to make findings on the balance of probability, which is not a precise science, and which involves an assessment of the relative likelihood of events;
  4. She had to make several evaluative judgments;
  5. She was required to make mixed findings of fact and law, not least, the application of the Bolam/Bolitho test;
  6. The premise of the Bolam test is that there may not be one right answer upon which the facts are found, but a range of reasonable answers;
  7. It was obvious from the significant dispute on causation, that there was a sharp difference of view as between the experts, all of whom the trial judge found gave their evidence in good faith. It was her decision to decide which evidence, on the dispute, she preferred;
  8. The Claimants case on the appeal was that the dispute about causation was binary and to be resolved by assigning his case to one of two categories, CESI or CES-R. The distinction between the two is imprecise in the literature. There are different definitions making categorisation difficult. The real question, which the trial judge addressed, was what were the outward signs, on the balance or probability, which showed the progress of the Claimant’s underlying pathology, and at which point, on the balance of probability, he had reached a position where functional recovery was no longer likely.

Accordingly, as was emphasised by Laing LJ:

“The Claimant therefore has significant obstacles to surmount in this case. It is not enough to persuade the court that a different view of the evidence was possible. The Claimant has to persuade the court that the only possible view was that advocated by the Claimant at first instance.”

It was also recognised by Laing LJ that it is trite that a first instance judge must decide the principal issues as between the parties and give reasons for their decision which are detailed enough to enable the parties to know why they have fared so in their case. A judge is not obliged to decide every single issue in dispute. In the context of the case before the Court of Appeal, the trial judge had decided the issues that the parties had agreed she needed to decide, after listening to the evidence.

Laing LJ concluded by saying that “the judge was given many building blocks for her judgment, that is all the evidence, lay and expert, and the parties submissions. The agreed issues were the framework of the judgment. But they did not dictate its overall structure, or its details. Those were for the judge to decide … not for this court…  the tight stricture of the judgment, and its succinctness, are signs that the judge had carefully navigated the sea of evidence and analysed its essential components into a coherent whole.”

On a further aspect, Davis LJ at Paragraph 96 of the judgment recognised that this was probably the first case of CES that had come before the Court of Appeal, but in doing so, spelt out that it did not mean that it raised issues of principle of general application. In fact, an appellate court, often needs to be careful to avoid making generalised pronouncements on the obligations of doctors in medical situations and “what is ordinarily required, in each case, is consideration of whether the responses and procedures actually undertaken in a given medical situation fall out with the range of reasonably and logically justifiable responses and procedures, applying the Bolam/Bolitho principles, on the facts of the individual case “.

Davis LJ recognised that the grounds of appeal were directed at the trial judge’s primary findings of fact and her evaluation of the facts and fell foul of virtually all the warnings and caveats in the authorities, and most recently summarised in the Perry decision. The criticisms of the trial judge in her judgment were not made out and Davis LJ spoke of being troubled in that “the appellant’s submissions at stages seemed to come close to advocating an approach in effect requiring a counsel of perfection, bordering on strict liability; a long way from the yardstick of reasonableness.”

And so

The Court of Appeal was unseated by the suggestion that it should give guidelines in relation to the management of CES cases. Each CES case is to be considered on its individual facts and not placed in the constraint of appellate guidelines.

In terms of focusing in on the appeal based on the trial judge’s finding of facts at first instance, the Court of Appeal has shorn up the already almost insurmountable.  Any appeal on the findings of facts and their assessment will be a Himalayan struggle. Indeed, in this instance, Laing LJ considered not only that “the decision which she made [the trial judge] was one which was open to the judge, but it was the right decision.” Whilst this is considered to be the first case of CES to have been considered by the Court of Appeal, it is unlikely to be the last.

 

This article was written by Jonathan Godfrey, a specialist in clinical negligence claims at Parklane Plowden Chambers.

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