Posted: 29/04/2019
The High Court has recently ruled in favour of Kerry Shaw, a 40 year old teacher from Grimsby, who was left severely disabled after a delay in diagnosis of Cauda Equina Syndrome that developed after a trauma.
The incident which caused Mrs Shaw’s injury took place in May 2013 when she was kicked in the back by a five-year-old pupil. She visited her GP, Dr Andrew Stead, the defendant in this case, at the Grimsby Area Primary Care Emergency Centre, an out of hours surgery. Her claim surrounded allegations that he failed to identify that she was presenting with signs of Cauda Equina Syndrome and to refer her urgently for investigation. Because Cauda Equina Syndrome is a progressive condition, by the time she did attend hospital and the diagnosis was reached, she had suffered significant permanent neurological damage. She argued that the care provided by Dr Stead was negligent and that had he acted appropriately, she would have suffered less damage and had a better outcome. As the parties in the case remained at odds over the issue of liability, the matter went to trial on this issue alone.
In many cases involving a delay in diagnosis of Cauda Equina Syndrome, the facts surrounding events are disputed and this was the case here – the facts surrounding the claimant’s presentation and the appointment were disputed. However, in this instance, the GP experts did agree entirely as to what an appropriate standard of care would be with a patient attending with low back pain. Crucially they both agreed that in any patient attending with acute low back pain, the doctor must take a history and conduct an adequate examination so as to determine whether there are any ‘red flag’ signs/symptoms. If red flags are found, the patient must be referred to hospital for further investigation. Failure to refer in this situation constitutes a breach of duty.
The ‘red flags’ in a patient presenting with acute lower back pain were agreed as:
The GP experts also agreed that if on questioning and examination no red flag symptoms are identified, the doctor must warn the patient to seek immediate and urgent medical attention should such symptoms develop. Failure to give such a warning would also constitute a breach of duty.
In this case the real area of dispute between the parties was whether or not the claimant had any red flag symptoms by the time of her consultation with Dr Stead. It was agreed that if she did, he was in breach of duty in not referring her to hospital, but that if there were no red flag signs present, the care provided was acceptable. The case centred around what symptoms were present, what was reported to the doctor and what questioning and examination he performed.
The background to the claimant’s visit to her GP was perhaps less typical of a Cauda Equina patient in that she was attending with back pain following a specific trauma. She was squatting on the floor at the time she was kicked by the pupil, fell forward and then twisted herself, feeling significant pain very quickly. Initially her only symptom was back pain and then pain down her legs - she visited her GP practice the next day (a Friday) and was given pain killers.
However, the following day (Saturday) her condition developed further. At 15.16 she rang her GP's out of hours service and spoke to a nurse who noted: ‘History of trauma to back on Thursday - seen by GP yesterday and prescribed tramadol and paracetamol - today legs have gone numb, tingling, feels dizzy and weak and nauseous, unable to get out of bed to go to toilet.’
After a further call she was advised to attend the out of hours surgery. She saw Dr Stead at 18.50. The history in his notes was: ‘Two days ago whilst crouching down was kicked in the back by a 5 year old pupil. Twisted her back as she stood up quickly. Over the next 24 hours developed severe low back pain with radiation down left leg. Given tramadol by GP yesterday. Since then has been nauseated and light headed. Back pain no better. No red flags.’
Dr Stead examined Mrs Shaw and noted ‘tender lower back especially left sacro iliac area. Unable to perform straight leg raise, either leg reflexes equal and normal. Sensation normal’. He recorded a diagnosis of sciatica and recommended a change of painkillers and ‘call back if no improvement’.
Mrs Shaw next sought medical advice on Monday 27 May. She again called the out of hours service who recorded ‘states pain is now in both legs and is struggling to mobilise as legs feel cold and like jelly. Passing urine but is having to strain to do so, slight constipation’. She had an appointment arranged to see another GP at 14.54 on the Monday afternoon. The history in his notes reads: ‘back injury 4 days ago. Kicked by a learning disability pupil in back while leaning forward. Had severe pain initially. Seen by own GP and was given tramadol. 24 hours later pain started radiating to both lower legs. Attended OOH 2 days ago and was given naproxen and DHC. Since last night unable to move both lower legs - feel cold and jelly. Struggling to pass urine (has to force strongly).’
After examination, which found loss of power and sensation but good tone per rectum and normal perianal sensation, he referred to the on call surgical registrar who advised that Mrs Shaw needed to go to A&E immediately – which she did. Later that afternoon she underwent an MRI scan of the lumbar and sacral spine which found a large central disc prolapse at the L3/4 level. Incomplete Cauda Equina Syndrome was diagnosed and the claimant was taken to Hull Royal Infirmary as an emergency where she underwent surgery. However she has been left with significant permanent disability due to neurological damage.
At trial Dr Stead's evidence was that whilst he did not recall this specific consultation, it was his usual practice to ask patients with low back pain questions to exclude red flag symptoms suggesting possible Cauda Equina Syndrome. This covered asking about problems passing urine and questions such as whether patients feel their legs will not take their weight, or whether pain is restricting walking. He said that his note ‘no red flags’ meant that there was nothing in the history given by the patient to require referral and that he would not have written such an entry in the notes without asking about each of the red flag symptoms. He stated that recording ‘sensation normal’ meant that he had checked the sensation in both legs. In relation to the advice given to Mrs Shaw, he said that he would specifically have mentioned the red flags to look out for and told her to seek further medical advice if any emerged.
It was agreed and upheld by the court that there was no evidence of bladder or bowel dysfunction at the time of the first attendance at the GP on the Friday. By the Saturday, it was noted that Mrs Shaw reported to the out of hours nurse that her legs had gone numb and she had tingling. When she saw Dr Stead, he had access to the notes of her previous attendance and calls and so was aware that she had complained of bilateral pain on the Friday and bilateral numbness and tingling in the legs that day. Her evidence was that she was in severe pain and was finding it very difficult to mobilise. The GP experts agreed that these features of her presentation should have been recorded in the history and that it would be important to differentiate between difficulties caused by loss of power and those caused by pain. There were a number of aspects of the key consultation where the recollection/evidence of Mrs Shaw and her husband differed from that of Dr Stead and/or his records. The judge provided a careful analysis of the evidence and credibility of the various aspects, particularly where there was a conflict.
Specifically and crucially the judge accepted Mrs Shaw’s recollection of an episode initially of difficulty passing urine and then urinary incontinence on the Saturday morning and of weakness in her legs that day (both red flag signs of Cauda Equina Syndrome) despite there being nothing in the records about an episode of urinary incontinence on this day, although there was reference to her legs being numb.
The findings of fact made by the judge were:
Dr Stead’s evidence was clear that he was alert to the signs and symptoms of Cauda Equina Syndrome and would act on them – and that he would have asked about them and noted any present. He accepted that set against a background of bilateral pain, numbness and tingling as recorded in the notes, an immediate referral to hospital was required if there was any evidence of urinary incontinence or lower limb weakness. He also appeared to accept that if the claimant had in fact suffered urinary incontinence by the time he saw her, and/or he felt she had difficulty controlling her legs, a properly conducted consultation would have identified this.
Having considered the evidence, the court found that the claimant did have red flag symptoms at the time of the consultation leading to the finding that Dr Stead missed them. Specifically the judge stated that she rejected any suggestion that Mrs Shaw would not have reported her symptoms if questioned appropriately and held that the red flags were there to be found but were unfortunately missed.
The court therefore concluded that on this occasion Dr Stead's standard of care fell below what would be properly expected of a reasonable GP and that Mrs Stead had established that he was in breach of duty in failing to refer her to hospital.
Philippa Luscombe, head of the specialist Cauda Equina claims team at Penningtons Manches LLP, comments: “This is a tragic case where a young woman has been left with significant disability. Many of the features are typical of Cauda Equina claims – an attendance early on in the course of events with a dispute over what symptoms were present and/or reported and a late diagnosis because Cauda Equina was not suspected/investigated. In a wider sense, it is helpful that in this case the experts completely agreed as to what the red flag signs are and what the appropriate standard of care is in managing a patient with acute lower back pain. This will assist in other cases. Beyond that, the judge had to weigh the evidence and make a finding on the facts. Her findings meant that the defendant had to have been negligent but this was finely balanced. Given the evidence of the claimant and defendant, it is clear why this matter went to court.”
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