Life-changing settlement following delayed cauda equina syndrome treatment

Our client, ‘Jenny’ (whose real name we are protecting for reasons of confidentiality), first came to us after a lengthy stay in a rehabilitation hospital at the young age of 29. Jenny had experienced problems with lower back pain from her late teens, and she was diagnosed with mild prolapse of a disc in her twenties.

Jenny initially managed her lower back pain with painkillers but things progressed when the back pain worsened, accompanied by sciatica down one leg. Jenny sought physiotherapy and chiropractic treatment and saw her GP for increased pain-relieving medication. She was appropriately warned of the ‘red flags’ of cauda equina syndrome (CES), often referred to as ‘safety-netting’ of the patient. Jenny fully understood that if she were to develop these symptoms, she would need to seek urgent medical attention.

When Jenny started to experience difficulty emptying her bladder, accompanied by a reduced flow of urine and a slight sensation of numbness in her genital area, she knew that she should seek medical attention. Jenny called NHS111 for advice and was directed to attend A&E, which she did immediately at her local hospital in North London.

At A&E, a detailed examination took place and a decision was appropriately made at midday for an urgent MRI scan. For unknown reasons, the MRI did not actually take place until 11am the following day, amounting to an almost 24-hour delay.

The MRI scan showed a substantial disc prolapse at L4/5, which obliterated the thecal sac and was causing severe cauda equina compression. Following reporting of the scan, a referral was made to the neurosurgical team at a neighbouring London hospital for Jenny to be transferred for emergency surgical decompression. Although she was accepted for transfer to the neurosurgical team, there were delays in organising her transportation and a further wait, until 5pm that day, for her to be seen by a neurosurgeon.

Jenny did not undergo her ‘urgent’ decompression surgery until 2am the following morning, over 48 hours after the onset of her symptoms. She had a poor outcome from her surgery, with worsened foot drop and further loss of bladder function. She required a repeat discectomy several hours after waking up from surgery to deal with (arguably) residual disc that had been left behind in the original operation. An alternative analysis was that this was a repeat prolapse of the same spinal disc, ie it had come out again, shortly after surgery, while lying in bed.

Following the second surgery, Jenny had a lengthy rehabilitation period, with considerable time spent in a neuro-rehabilitation centre. She underwent intensive physiotherapy to address her foot drop and neurological impairment of lower limb function. She was unable to work during her inpatient stay, had to learn to perform intermittent self-catheterisation (ISC) for her bladder and manual evacuation for her bowels.

Jenny committed herself to her rehabilitation with maximum effort, but sadly has been left with significant permanent neurological injury, including:

• weakness and instability in her legs with altered sensation in both her legs and buttocks;
• difficulty in mobilising in terms of distance and when walking on unlevel ground or surfaces;
• the need to self-catheterise regularly, despite gradual improvement, together with periodic urinary incontinence, urinary urgency and urinary leakage;
• loss of bowel function, requiring daily management using a regime of laxatives and digital manual evacuation;
• extremely limited genital sensation and sexual function.

It was admitted by the two defendant trusts that there was a negligent delay in performing an MRI scan, in transfer to the neurosurgeons and in being seen by the neurosurgical team, resulting in a delay of 26 hours in performing surgery to decompress the cauda equina nerves.

However, the trusts denied that Jenny suffered any material demonstrable harm by the period of delay. They maintained that there was little evidence to support the argument that Jenny’s neurological condition, bladder or bowel function deteriorated over the period of delay. In short, they disputed that any worsening of her condition had been caused and that she would have been left with the same outcome with earlier surgery.

The case involved much medico-legal debate as to whether Jenny ever progressed from CESI (CES Incomplete) to CESR (CES Complete) as a consequence of the delay in surgery, and, if she had always remained at CESI, whether the delay caused any demonstrable worsening of her condition. The medical studies and literature on this subject form the basis of much discussion on cauda equina syndrome outcomes in the context of proving causation.

The first trust also denied that there was any negligence in the performance of the original discectomy operation, which left Jenny in a worsened condition. They asserted that the complications arising from the surgery were recognised, non-negligent complications, and that they were caused by a recurrent prolapsed disc, rather than the surgeon leaving large disc fragments behind in the original surgery. We argued that the harm caused by the original surgery arose from a negligent failure to remove the disc fragments.

As the claim was admitted on breach of duty but denied on causation, court proceedings were issued in the High Court. It became clear in without prejudice discussions that the defendants were amenable to exploring settlement of the claim, despite the robust open denials on causation. Therefore, the parties later agreed to stay the claim in order to attempt ADR, and a pathway and timetable to a round table settlement meeting was agreed amicably. This pathway included exchange of expert evidence on causation, condition and prognosis, and quantum, in the following fields:

• neurosurgical
• colorectal
• neuro-urological
• uro-gynaecological
• care and occupational therapy
• accommodation

We served a detailed schedule of loss and a counter-schedule was served on behalf of the defendants. The claim settled at a round table settlement meeting for a six-figure sum. Due to Jenny’s high-profile job, we are maintaining confidentially in her claim.

Lucie Prothero, senior associate in Penningtons Manches Cooper’s medical negligence team, who acted for Jenny and specialises in cauda equina syndrome cases, commented: “It would be easy to dwell on how difficult this has been for Jenny, but I would actually like to take a few moments to talk about some positives.

“Jenny is a remarkable young person and I feel privileged to have supported her in achieving a life-changing settlement. Despite being left severely neurologically injured at a young age, Jenny’s  resilience and determination has meant that she’s flourished in her career with the help of a very understanding employer and an inspiring attitude to her injury.

“We can only try to imagine what it must be like to be left with such personal and in many ways ‘hidden’ disabilities, at an age where you haven’t yet met a life partner, embarked on a family, or established yourself fully in your chosen career. Jenny embraced rehabilitation and made remarkable strides physically, from a low base-point after surgery.

“She has lifelong medical needs in respect of bladder and bowel management, physical impairments affecting day to day activities, and a need for ongoing care and assistance, occupational therapy and physiotherapy. She also requires single-level accommodation and housing adaptations, together with transport-related support and may incur increased childcare costs if she has children. Furthermore, if Jenny were to become unemployed in the future, she would be at a disadvantage on the open labour market due to her disabilities.

“Jenny was delighted to finally reach a settlement of her claim and it was a pleasure to be part of that journey with her. The settlement sum will be life-changing and it comes at a point where the future looks very bright in terms of starting a family and moving house. I am looking forward to keeping in touch with her over the coming years.

“I also wish to take a moment to talk about the positives arising out of the conduct of the defendants in this case. I have spoken about the denials of causation, which have been difficult for my client to deal with. That aside, the approach taken by the defendants and their legal representatives was constructive, deeply respectful and collaborative. Ultimately this enabled a sensible resolution of the claim, without unnecessary escalation of legal costs. My client left the round table meeting feeling a sense of justice that her story had been heard, understood and recognised. Whilst no sum of money can change what has happened to Jenny, she feels ready to put the legal chapter behind her and focus on living her life to the fullest.”