Judgment has recently been given in the case of Jarman v Brighton and Sussex University Hospitals NHS Trust  EWHC 323 (QB). Ms Jarman, the claimant, suffered a back injury at work in February 2015. Over the next few weeks she attended her GP practice three times complaining of back pain and some subjective signs of Cauda Equina Syndrome (CES) which were not confirmed on examination by the GP.
On the first two occasions she was advised to return if her symptoms persisted and, at the third appointment, in light of continuing and progressive sensory symptoms, her GP referred her to the A&E department at the Royal Sussex County Hospital run by the defendant trust.
At attendance at the defendant’s hospital on 3 March 2015 and, after reporting her history, the A&E team referred Ms Jarman to the orthopaedic team where an orthopaedic registrar reviewed her. His notes indicated that he carried out a full assessment and, importantly, tested her for signs and symptoms of CES.
Cauda Equina Syndrome is a condition where part or all of a disc in the spine applies pressure to a set of nerves at the base of the spine known as the Cauda Equina that control, among other things, bladder, bowel and sexual function and sensation. They are sensitive nerves that can only sustain a period of compression before they suffer permanent and irreversible damage. This means that, although CES is rare, it should always be regarded as a surgical emergency in its early stages as the timing of surgery will make all the difference to the outcome.
The registrar noted that Ms Jarman was reporting subjective symptoms consistent with CES but documented that his objective testing did not reveal any indicators that she was suffering from CES. He made a diagnosis of likely disc prolapse but not consequent CES and referred her for an MRI scan to investigate her back pain but not to eliminate the possibility of CES. This was requested as routine, although the defendant accepted that it should have been categorised as “urgent” which, under the trust’s system, would be within a fortnight. Ms Jarman was advised to return if her symptoms persisted and there was evidence to suggest that the registar told her that she would have an MRI scan within a few days.
Ms Jarman duly underwent a lumbar spine MRI just over two weeks later on 18 March 2015. The scan report on 20 March confirmed compression of the Cauda Equina nerves by a prolapsed disc. Arrangements were made for Ms Jarman to undergo surgery to remove the compression from her Cauda Equina nerves the next day, 21 March 2015. However, despite surgery, she was left with significant permanent neurological dysfunction as a result of the damage sustained.
Ms Jarman brought a claim against the trust alleging that the urgency allocated to the MRI scan was inappropriate and that she should have had a scan no later than 7 March (ie within the few days suggested to her and noted) and surgery by no later than 9 March as with earlier surgery she would have had a better outcome.
Her primary case was that the suggestion of a scan within a few days was because she was a suspected CES patient and therefore the trust should have kept to this timescale. The trust, while accepting that she should have had a scan within 14 days, did not accept that the reason for the scan was because she was suspected of CES. Its clear position was as per the records that she was not suspected of having CES. If she had been, then she would have needed an immediate scan. As she was not a suspected CES patient, the timescale within which she had the scan was acceptable.
The claimant’s secondary case was that she should have been suspected of having CES and received an immediate scan as a result. The trust’s position was that CES had been considered as a potential diagnosis and a thorough assessment was carried out which did not reveal any objective signs of CES and, therefore, there was no obligation to arrange an immediate scan to confirm or exclude the presence of CES.
The judge in this case provided a very good summary of Cauda Equina Syndrome and the significance of timing of diagnosis and treatment in his judgment. He said: “CES is a relatively rare condition which is commonly caused by a disc prolapse. The disc bulges and puts pressure on the bundle of nerve roots emerging from the end of the spinal cord below the first lumbar vertebra. These nerves transmit messages to and from the bladder, bowel, genitals and saddle area, and control sensation and movement in that area. CES is typically characterised by severe lower back pain with bilateral sciatica and is associated with saddle anaesthesia, urinary retention and bowel dysfunction.
“As the Court of Appeal has recently noted in Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors  EWCA Civ 1523, §5, once CES has been diagnosed, it is seen as an emergency, because unless the pressure on the nerves is released quickly, they can be damaged permanently. CES may be suspected following consideration of a patient’s symptoms (as subjectively reported) and, following examination, of any objective physical signs of CES, but a diagnosis of CES can only be confirmed by an MRI scan.”
In terms of liability or breach of duty on the issue of the timing of the MRI scan, the parties were not completely opposed. Both orthopaedic experts felt that good care would have been to arrange a scan for the claimant on the day of her attendance. Of note was that the parties agreed that the threshold for scanning any patients with indicators of CES is probably lower than in 2015 but whereas the claimant’s expert thought that the delay to 18 March was unacceptable and a breach of duty, the defendant’s expert felt that it was within a range of reasonable practice and, so although not what he would have done, still acceptable.
The claimant’s expert did not say that a scan that day was mandatory but that it should have been done within three to four days as per the ‘few days’ that the claimant was advised would be the case. It was agreed that the registrar’s assessment had been thorough and that there were no objective signs of CES. The weight of evidence was that in 2015 it would have been acceptable not to further investigate CES although nowadays the threshold might be lower.
In giving his judgment the judge detailed the legal tests that he needed to apply: “There was no dispute between the parties as to the applicable legal principles. I must apply the well-known Bolam test (see Bolam v Friern Hospital Management Committee  1 WLR 582), whereby a doctor must provide care which conforms to the standard reasonably to be expected of a competent doctor and will not be in breach of the duty of care if a responsible body of medical opinion would have approved of the treatment given, even if other experts might disagree. The relevant doctors in the present case … were practitioners in the field of general orthopaedics and the parties agreed that the issue of breach of duty should be determined according to the standards reasonably to be expected of competent general orthopaedic specialists, rather than, say, specialists in spinal surgery. It was also common ground that the relevant standards were those which were applicable in March 2015, when the claimant attended the trust, and not those which a general orthopaedic specialist would apply today.”
He went on to say: “Where, as in the present case, the court is presented with a range of expert views, some of which support the defendant and some of which do not, it is of particular importance to understand the basis upon which the court would be entitled to reject the evidence on behalf of the defendant as not reflecting a "responsible body of medical opinion …”. I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman [in Maynard v West Midlands RHA  1 WLR 634 at 638E] makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."
The court had to decide whether the care provided was reasonable based on expert opinion. The judgment sets out a succinct reminder of the tests to be applied.
Having set out the tests that should be applied, the judge found in the defendant’s favour and highlighted the following points as the basis for that finding:
In any event, the judgment made clear that the case would have failed on causation as the three to four days that the claimant’s expert would have accepted as reasonable to perform a scan (which would then have resulted in a diagnosis) would have taken the claimant past the ‘window of opportunity’ for a better outcome in any event (generally considered to be within 48 hours of onset) if she did have CES on 3 March and there was no clear evidence of a deterioration in the window within which (on the claimant’s case) there was a delay in surgery ie 9 - 21 March.
Interestingly, this was despite a one-off incident of complete incontinence. The judge heard evidence on this and concluded that, as the claimant retained bladder control after that incident, she did not become CESR (complete CES where the damage is irreversible).
Philippa Luscombe, head of the Penningtons Manches Cooper Cauda Equina claims team, comments: “One of the difficulties with timely diagnosis and treatment of CES is that in the early stages symptoms may be felt by the claimant but not detected on formal examination.
“This creates a difficulty for clinicians assessing patients with back pain who report Cauda Equina symptoms but where examination is normal. CES is a diagnosis based on clinical signs and MRI imaging and if there are no objective clinical signs of CES then imaging is not mandatory. However, some patients who report symptoms consistent with CES but have no objective findings on examination may be in the category of patients with the very early stages of CES – and thus may progress quickly to become patients who need urgent surgery.
“Clinicians therefore have to decide how to manage these patients. In this case, the claimant received a full and comprehensive assessment and examination and it was clear that CES was being considered. On the findings on examination it was reasonable for the registrar - based on 2015 standards - to conclude that there were no objective signs of CES and not to perform a scan, although it was agreed that it would have been good practice to have done so.
“What was required in light of his decision was clear advice to the claimant to return if things progressed – which was given. This was therefore a case where, unfortunately, the claimant’s diagnosis was delayed and she did progress to full CES and suffered long-term damage. But on the expert evidence presented by the claimant, she did not have a case sufficiently persuasive to the court that the care she received was unacceptable (rather than not as good as it could have been) or that she would have had a better outcome with the care that her expert would have regarded as acceptable.
“Although unsuccessful, this case does help claimants with delayed diagnosis of Cauda Equina claims as it emphasises the importance of early diagnosis and treatment; the need for clinicians to be alert to whether a patient may have CES and to carry out a thorough assessment and arrange imaging if the assessment is consistent with CES; the increasing trend towards arranging imaging in patients with subjective but not objective signs of CES; and the need for real urgency in performing imaging where CES is suspected.”