Aidan O’Brien successfully defends a cauda equina syndrome claim, valued at £2.3 million: Jarman v Brighton and Sussex University Hospitals NHS Trust [2021] EWHC 323 (QB)

Aidan successfully represented the Defendant Trust in this complex cauda equina syndrome claim.  The Claimant’s case was rejected in respect of breach of duty and causation.

Background:

2. The Claimant then brought a separate claim against the Defendant Trust, arising from her attendance at Royal Sussex County Hospital on 3 March 2015 (‘the CN Claim’).  The Claimant alleged that the Trust was negligent in failing to promptly diagnose and treat her CES, by arranging an MRI within a few days of her presentation.  The Trust denied breach of duty and causation.

3.At the time of the Claimant’s attendance at Hospital, she was reporting “very worrying symptoms [of CES] and lots of them”.  She was assessed by an Orthopaedic SpR, who was unable to elicit any objective signs of CES.  A post-void bladder scan was also normal.  As a result, the Orthopaedic SpR excluded CES and arranged an out-patient MRI scan in order to expedite treatment of back pain.  Unfortunately, the subsequent MRI scan – performed some 2-weeks later – revealed that the Claimant was, in fact, suffering from CES. The parties agreed that if an emergency MRI scan had been arranged, it would have demonstrated cauda equina compression at that time.  

4.The Claimant’s employer subsequently brought a Part 20 contribution claim against the Trust (‘the Part 20 Claim’). The employer’s allegations against the Trust largely mirrored those made by the Claimant.

5.Before trial, the Claimant settled the PI Claim against her employer.  The employer eventually discontinued the Part 20 Claim against the Trust.

6.The Claimant successfully applied to rely upon the written and oral evidence of her employer’s Neurosurgical and Neurological experts, instructed within the PI Claim, at the trial of the CN Claim (Jarman v Brighton & Sussex University Hospitals NHS Trust [2020] EWHC 3238 (QB)). 

7.On 8 December 2021, Jason Coppel QC (sitting as a Deputy Judge of the High Court) presided over the trial of the CN Claim at the Royal Courts of Justice.

Points of Interest

• This was a complex claim, which was persuasively presented by the Claimant’s representatives.  The Court heard from 7 medical experts, all of whom confirmed that they would personally have arranged an emergency MRI scan, following the Claimant’s presentation at the Hospital.  Despite this, the Court accepted the Trust’s case that the Orthopaedic SpR had acted in accordance with a reasonable and responsible body of opinion, when excluding CES and omitting to arrange an emergency MRI scan.

• The Defendant Trust accepted that errors had been made within the Claimant’s medical records.  In particular, (i) following clinical examination, the recorded management plan was for an MRI ‘within the next few days’, and (ii) the MRI request form was mistakenly marked as being ‘routine’ rather than ‘urgent’.  Despite this, the Judge accepted the Defendant’s argument that the phrase ‘within the next few days’ did not commit it to performing an MRI earlier, than in fact occurred and the mistake within the request form had no causative import.

• CPR r. 35.11 permits a party to rely upon an expert report as evidence at trial, which has been disclosed by another party, within those proceedings.  In this instance, the PI Claim, Part 20 Claim and CN Claims were all separate actions. As such, CPR r. 35.11 was not engaged.  However, the Claimant successfully applied to the Court for permission to rely upon her employer’s expert reports and oral evidence at the trial of the CN Claim, despite the fact that those experts had not been instructed within those proceedings.  In granting the application, the Court relied upon its general case management powers.

• In dismissing the CN Claim, the Judge determined that the Orthopaedic SpR had been entitled to exercise his clinical judgment when excluding CES, in circumstances where there were no express guidelines mandating an MRI scan for patients presenting with “very worrying symptoms [of CES] and lots of them” but no objective signs.

• The Judge further observed that: “… it was common ground, and Mr Spilsbury [Claimant’s Orthopaedic expert] accepted during his cross-examination, that there is a trajectory towards increased numbers of scans, and that the threshold for scanning was, in general, higher in 2015 than it is today…  In other words, whilst the precise approach adopted would differ between clinicians, the evidence of CES would have to have been stronger in 2015 in order to justify a scan than it would have to be today. That serves to support the approach of not scanning a patient for CES who presented with symptoms but no signs of CES in 2015, even if there is a greater likelihood that such a patient would be scanned on an emergency basis today…”

• The Claimant’s Orthopaedic expert argued that an MRI scan should have been arranged within 48-72 hours of presentation to Hospital (rather than on an emergency basis <24 hours).  Under cross examination, Mr Spilsbury accepted that “I would agree there is no logic in delaying it and I wouldn’t have delayed it”. In rejecting Mr Spilsbury’s evidence, the Judge commented that: “… such is the oddity of his position that I am driven to accept the Defendant’s submission that Mr Spilsbury was guilty, to some extent at least, of framing his position to fit the Claimant’s primary legal argument…”

• The parties’ experts agreed that the main determinant of success of outcome of decompression surgery to relieve CES is the neurological condition of the patient at the time of surgery.

• The Claimant’s Neurosurgical expert (Mr Nicholas Todd) argued that if the Claimant had been operated on within 48-hours she would have had a “very good outcome“.  However, under cross examination Mr Todd accepted that “… once you have got beyond the 48-hour window in my opinion, we need to demonstrate, the claimant needs to demonstrate, neurological deterioration to succeed in saying the outcome would have been better… if she cannot then in my opinion there is no causation case; it would have been the same outcome”. 

• The Claimant sought to rely upon the further expert evidence of Mr Robert Maurice-Williams (Neurosurgery) and Professor Anthony Schapira (Neurology), both of whom argued that the Claimant should be found to have suffered injury by reason of having been operated on later than she should have been (i.e. the duration of compression was causative, irrespective of whether deterioration in symptoms occurred during the delay).   

• “… this potentially significant evidence on causation was undermined in my estimation by being proffered by both experts as a high level view based on their own experience and without any evidential support in the way of published literature or even case studies of their own patients. Mr Maurice-Williams told me that “relying on the literature is difficult” because, in the case of CES, it is “vast” and also “I do not think that any paper has ever been published where somebody cannot find flaws in it” (14 December 2020, pp. 50-51). I have considerable difficulty accepting that proposition. The existence of a “vast” literature in CES made it more rather than less surprising that none was cited by him. I would have found his evidence much more persuasive if it had been supported in some concrete or objective way. As it was, the only literature to which I was referred on the significance of delay in the treatment of CES concerned the impact on bladder function of delay in decompression surgery beyond 24 and 48 hours of the onset of CESI and could not be directly applied to the Claimant’s case.”

• Due to the COVID-19 pandemic, the trial was dealt with in ‘hybrid’ form, with some factual and expert witnesses giving evidence remotely and legal representatives appearing in person. 

• This claim was subject to qualified one-way cost shifting. Following dismissal of the claim, the Claimant agreed to set off an interim cost order made in her favour against the Defendant’s trial costs. 

The full judgment can be found here: https://www.bailii.org/ew/cases/EWHC/QB/2021/323.html

Aidan O’Brien specialises in high value clinical negligence claims, acting on behalf of both claimants and defendants.  Aidan frequently delivers training, seminars and workshops upon request. Any such request should be made to the Farrar’s Building Clerking Team (0207 583 9241)

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