Jarman v Brighton and Sussex University Hospitals NHS Trust [2021] EWHC 323 (QB) (18 February 2021)

C injured her back in an accident on 17 February 2015. Following consultations with her GP and physiotherapists, she attended A&E on 3 March 2015. C was examined on the same day… she was referred for an MRI scan on a “routine” timescale. The MRI scan was performed on 18 March 2015 and showed probable Cauda Equina Syndrome (“CES”), as she had a prolapsed disc compressing the right anterior cauda equina. C had urgent spinal decompression surgery on 21 March 2015. But this was not successful in preventing her from suffering permanent neurological damage, and long term consequences of CES. [1]

C claims that D acted negligently in causing decompression surgery to be delayed until 21 March 2015. She contends that upon her attendance at A&E on 3 March, she should have been referred for an urgent MRI scan, which should have been completed by, at latest, 7 March 2015 and that she should have been operated on by, at latest, 9 March 2015; and that the delay until 21 March 2015 caused a worsening of the outcome which she has experienced following her decompression surgery. D maintains that the timing of Cs scan and subsequent surgery was appropriate, as she was not showing any signs of CES… D contends that a delay in surgery from 9 March 2015 to 21 March 2015 did not cause any injuries or additional damage to C. [2]

C attended her GP on 17 February 2015… According to… GP notes, C reported having had low back pain for several months and pain radiating down her right leg for two weeks. She had a weak pelvic floor and would leak urine when coughing. Following the accident, C had tingling around her vaginal area and was incontinent of urine when a sharp pain occurred. GP investigated possible symptoms and signs of CES and observed that C had normal control over her bowels, no perianal numbness, normal saddle sensation… normal power in both legs and normal anal tone. GP suspected a disc prolapse. She prescribed medication for pain, suggested physiotherapy and explained the “red flags” for CES which should prompt C to come back to see her… [13]

She returned to GP on 3 March 2015, who advised her to attend A&E straightaway on account of her reporting increased numbness around her S3 vertebrae. [14]

C was examined by D… The examination notes record various symptoms reported by C. She had had a deterioration in back pain symptoms since her accident two weeks previously. She had burning pain into her right hamstring and around her genitalia. She had pins and needles around her back passage. She had no urge to open her bowels and had to force out stools. She had no urge to pass urine but no incontinence other than a long term problem with stress incontinence. She reported no leg weakness. These were, he accepted in evidence, “very worrying symptoms and lots of them” [16]

D also looked for signs of CES… She had sensation in her lower vertebrae and a slight loss of power in her right leg which was likely due to pain. He found that she had no loss of perianal sensation upon a pinprick test. Reduced anal tone is a sign of CES, but C had good anal tone upon a digital rectal examination. He also arranged for her to have a bladder scan which showed, after voiding, a volume of urine of 48ml. This was normal. A higher volume of urine would have indicated a loss of bladder control, another sign of CES. It was common ground between the parties that D’s examination had been thorough… [17]

The notes of the examination record D’s diagnosis, under “Problems and Differential Diagnoses”, as follows: “Either L1/L2 or L5/S1 prolapse, no evidence of cauda equina.” [18]

The notes record D’s “Plan”: “[To Come In] for MRI back in next few days. .. If symptoms deteriorating go to A&E.” [19]

Her MRI scan was performed on 18 March 2015. On 20 March 2015 D reported the MRI scan as follows: “There is a huge central and right sided paracentral L5/S1 disc protrusion compressing the right anterior cauda equina… ” [30]

The decompression surgery proceeded without incident. However, it did not result in C’s recovery; far from it. She experienced a deterioration in saddle sensation, pins and needles and more serious weakness in her right leg; her urinary functions deteriorated and her overall level of pain was worse. [33]

D did not act negligently in failing to diagnose C as having suspected CES and referring her for a scan on or before 7 March 2015. [49]

C sought to demonstrate that her neurological condition deteriorated during the period of delay between when she should have been operated on and when the operation actually took place. [54]

The period between 4 or 5 March and 21 March 2015 is relatively short in absolute terms. C’s pleaded case is that D was negligent in not scanning her by 7 March and operating upon her by 9 March. On that case, the period of delay relevant to causation of damage starts on 00.01 on 10 March… the end of the relevant period for causation purposes is at 11.59pm on 19 March 2015. [55]

She was only examined on 3 March and again on 21 March when she attended for surgery and so was not examined at either the beginning or the end of the window of attention, thereby leaving open the possibility that any deterioration may have occurred either before or after that window. On 3 March she was examined by D… competently performed decompression surgery could nevertheless cause a worsening of a patient’s condition in certain respects as a result, for example, of scarring, C cannot simply rely upon her neurological condition after that operation as an indication of what her condition was by 19 March, before the operation. Then, if C were able to show a deterioration in her neurological condition between 10-19 March 2015, there would remain the question of whether that deterioration can be established to have caused a specific injury or measurable damage which can be identified and quantified in damages. [56]

C did not return to A&E during the period between 3-21 March having been advised by D that she should do so if her condition deteriorated. That is, in itself, contemporaneous evidence that her condition did not significantly deteriorate during the period 10-19 March 2015. [57]

I do not accept that C’s neurological condition was materially worse by the end of 19 March than it had been at the beginning of 10 March. In the absence of that fundamental component of her case on causation, even I had found D to have been negligent, I would have rejected the claim on the basis that the relevant delay in treating C did not cause her any loss. [71]

the claim must be dismissed. [72]