C has brought a clinical negligence claim against D an osteopath, in relation to his failure to advise her at an examination/treatment session at 5.00-6.00pm on 14th February 2020 to attend hospital on an emergency basis due to her having symptoms of Cauda Equina Syndrome (“CES”). She went home and only called an ambulance later that evening after her symptoms deteriorated. She was operated on the next day and has been left with significant residual symptoms. [1]
Breach of duty was conceded before proceedings were issued, but D denies that his negligent failure has caused any injury/damage as there was no neurological deterioration in C’s condition whilst waiting for surgery (not accepted by C), C would not have been operated on any earlier than she was or to the extent that she would have been the delay made no material difference. D further argues that any residual injury was caused by non-negligent, intra-operative damage. [3]
By an application dated 16th April 2026 C seeks: Permission to amend the Particulars of Claim… [7]
It is C’s pleaded case as it currently stands that; “With reasonable management by D C would have gone directly to A&E and would have been there between 6pm and 6.30pm on 14 February 2020. On assumption of reasonable management it is probable that she would have been assessed as requiring investigating for cauda equina syndrome and would have had an MRI scan, either before or after neurosurgical involvement. Given the recent onset of her symptoms and the likely appearance of the MRI she would probably have undergone surgery as an emergency that evening. It is unlikely that there would have been a decision to delay surgery until the following morning.” [11]
The proposed amended pleading is: “With reasonable management by D Claimant would either have gone directly to A&E and would have been there between 6pm and 6.30pm on 14 February 2020 or would have gone home and either called 999 (or otherwise 111) for advice about what she should do. Of these two scenarios the more likely is that she would have gone home rather than going directly to A&E because of the need to pick up her son from nursery and because she does not drive. Given that when she called later an ambulance was despatched it is likely that the same sequence of events would have followed and that she would have been taken by ambulance to the Royal Sussex County Hospital and would have been scanned and undergone surgery during the night or alternatively first thing in the morning, around 0900 (rather than 1610). Had she gone directly to A&E then on the basis of the agreed position of the spinal surgeons in their joint meeting it is probable that she would have ended up being scanned out of hours and then transferred either to the Royal Sussex County Hospital (Brighton) or to St George’s Hospital, London. She would probably have had surgery starting by 0900, some 7 hours earlier than in fact happened (surgery proper started at 1610). Whatever the precise sequence of events, with reasonable management it is likely that she would have ended up with surgery starting not less than about 7 hours earlier.” [12]
…there is no good reason for the late application. The reality is that the issue of the likely timeline through to an operation was not properly analysed when it was appreciated that delay in operating was at the very heart of the case. [77]
it is not possible to say with certainty that the proposed amendment, to the extent that asserts a counterfactual, is bound to fail (i.e. does not have a real prospect of success). A more realistic assessment is that it has failed to address obvious issues leaving its prospects of success very uncertain. [78]
The degree of injustice to a Claimant requires some assessment of the strength of the case with the amendment allowed… The amendment is no more than the best that can be done at present, and much would remain to be done. The strength of the case is uncertain and, in some respects, the proposed amendment is no more than a holding position. [97]
Given the burden on C and the weight of factors in favour of refusing permission it is my judgment that injustice to C on the basis of the proposed amendment does not redress the balance. Accordingly, I must refuse permission of the amendment. [98]
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