Zarb v Odetoyinbo [2006] EWHC 2880 (QB)

[2006] EWHC 2880 (QB)

Case No TLQ/061//0131

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/11/2006

Before

MR JUSTICE TUGENDHAT

Between

MICHELLE ZARBClaimant

DR. OLESEGUN ABOYOMI ODETOYINBODefendant

Mr Timothy Briden (instructed by Russell Cooke) for Claimant

Miss Katie Gollop (instructed by Beachcrofts) for Defendant

Hearing Hearing dates: 6-9th November 2006

Judgment

[1]In this action the Claimant claims damages for negligence against her General Practioner, Dr Odetoyinbo. In short her case is that in September 2001, when she was aged 33, he failed to make an immediate call to an orthopaedic surgeon, or a same day referral, in respect of the symptoms with which she was presenting to him. There is no dispute that the Claimant in fact developed a syndrome known as Cauda Equina Syndrome “(CES)”, resulting in permanent nerve damage and a resultant loss of normal function of the bowels and bladder. She alleges that the Defendant was negligent and that the CES developed as a result. In this action, negligence and causation, and the amount of damages were all in issue at the beginning of the trial. By the mid-day adjournment on the second day, agreement had been reached on the Special Damages at a figure of £20,000, subject to liability.

[2]The events critical to this action all occurred in September 2001, and in particular in the three days 24th to 27th September. On 24th September she had attended a consultation with the Defendant, following which he had dictated a referral letter.

[3]The referral letter was typed and sent with a date of 26th September. It was addressed to Mr Natali, Consultant Orthopaedic Surgeon at the Royal London Hospital. In it the Defendant asked Mr Natali to review the Claimant, whom he had last seen in 1998. On 17 November 1997 the Defendant had in fact sent a letter to Mr Natali in similar terms to the 2001 letter. As a result of that referral Mr Natali had seen her on 28th January 1998. Following that visit, she had undergone an MRI scan under sedation. The L4/5 disc was found to be slightly dehydrated and the image showed a left posterolateral disc protrusion just touching the theca. This was not causing any definite focal neurological compression.

[4]In the 26th September 2001 referral letter the Defendant stated that in the last four months the Claimant had experienced two exacerbations. He described these: “The last one was three days ago when she woke up with back pain. This radiated down both legs and was only able to get out of bed with some difficulty. There was no associated urinary or bowel problem … [She] was only barely able to walk”.

[5]On 27th September the Claimant was admitted to the Neurosurgical Unit of the Royal London Hospital as an emergency via Accident and Emergency at about 6am. She was seen by the casualty officer Dr Birnie at 0950 hours. He noted (amongst other things) that she had a long history of back pain, for eight years, that six days previously she had difficulty getting out of bed, and that her pain had been getting worse. She was unable to open her bowels or pass urine. She felt numb around the anus. She had last passed urine at midnight, and last opened her bowels the previous morning. After noting other features of her condition, he recorded that a urinary catheter was passed and that she was referred for a neurosurgical opinion.

[6]At 1230 that day she was seen by the Neurosurgery Specialist Registrar, Mr Green. He recorded her condition and requested an urgent MRI scan. The scan revealed central disc prolapse. He consented her for surgery, recording that the risks discussed were:

“CSF leak, paralysis, numbness, bladder/bowel dysfunction, infection (meningitis, wound)”

. These risks are significant to the outcome of this case.

[7]Between 2200 and half an hour after midnight surgery was performed by Mr Sabin, Consultant Neurosurgeon. A small L4 laminectomy and lateral flavectomy was performed.

[8]The outcome of the operation was poor. The Claimant was discharged on 10th October. Since then she has suffered total permanent loss of normal bladder function and sexual sensation. There has also been permanent loss of bowel function, which the Claimant claims to be total. She also suffers from severe back pain. She deserves the greatest sympathy for the predicament in which she finds herself.

[9]There is evidence from two Consultant Neurosurgeons, Mr Russell BSc. MBChB. PhD. FRCS (Edin). FRCS (Glas). for the Claimant and Mr Macfarlane MA, B.Chir, MD, FRCS for the Defendant. Mr Russell is Consultant Neurosurgeon at Western General Hospital, Edinburgh, a post he has held for nineteen years. Mr Macfarlane is Consultant Neurosurgeon at Addenbrooke’s Hospital, Cambridge. I shall consider his qualifications in more detail below.

[10]The neurosurgeons agree that, if the Claimant had undergone surgery shortly after 24th September, the back pain would in all probability be similar to the back pain she in fact suffers following the operation on 27th September.

[11]The neurosurgeons also agree that, if the Claimant had undergone surgery shortly after 24th September, the incontinence suffered by the Claimant would in all probability not have occurred. The reason for this is, as the neurosurgeons agree, that the Claimant did not, on 24th September, have any of the features of CES. Had surgery been performed at any time before the onset of CES the Claimant would not, on the balance of probabilities, have become incontinent.

[12]No criticism is made of the decision to carry out the operation, or of the manner in which it was carried out. And it is common ground that the risks discussed, and to which she consented, would have been risks that would have been equally applicable if the operation had been performed at any other time. It follows that there was always a risk (short of a probability) that she might have been in the condition she is today, even if the operation had been performed earlier, as the Claimant claims that it should have been. But had that happened she would not have known whether the operation was in fact necessary, in the sense that she would not have known whether she would have gone on to develop CES, the effects of which the operation was intended to prevent.

[13]It is the Claimant’s case that, given the very serious risk of the outcome that in fact occurred, the only reasonable and proper course for the Defendant to have taken on 24th September was to make an immediate, or same day, referral. As the case developed it became clear that the essential basis for this contention was that, as is common ground, on 24th September the Claimant had bilateral sciatica. It is said that that is a sufficiently strong indicator of a risk of CES, such that no other course was open to the Defendant in performance of his duty of care. The Defendant’s case is that such a referral was not the only (or even the proper) course, and that the advice he gave the Claimant, and the referral he did make, were the proper, or at least a proper, course.

[14]It is agreed that bilateral sciatica can be caused by conditions other than central disc prolapse, for example by a tumour. And not all those who suffer CES also suffer bilateral sciatica. The majority of CES sufferers in fact have unilateral sciatica first.

Cauda Equina Syndrome

[15]Cauda Equina Syndrome is a rare and alarming syndrome. In his long career the Defendant had only come upon it once, and that was when he was working on a ward. That experience was comparable to the experience of Dr Williams, another very long established GP who gave expert evidence for the Defendant on general medical practice. In 31 years he had had experience of only two cases of CES, and in neither of these cases was it he who had diagnosed it. By way of comparison, bilateral sciatica is a condition which Dr Williams said he saw about 3 to 4 times a year. Bilateral sciatica includes cases where the pain is bilateral simultaneously and cases where the pain alternates from one side to the other. His experience of simultaneous bilateral sciatica (the Claimant’s condition) has been about two cases a year.

[16]CES is described by Mr Macfarlane in his report as follows:

“56. Cauda equina syndrome may be defined as a complex of symptoms and signs consisting of low back pain, unilateral or bilateral sciatica (with or without motor weakness and/or sensory loss in the lower extremities), sensory disturbance in the saddle area and loss of sphincter function. Implicit in the diagnosis of this syndrome is impairment of saddle sensation, bowel and bladder control. 57. The individual nerve fibres which comprise the cauda equina are of differing sizes. The motor fibres which supply the muscles to the lower limbs are large or medium-sized, whilst the sensory fibres bearing information from the limbs differ in diameter according to the modality of sensation which they carry (fibres of larger diameter carry touch and joint position sense whilst fibres of smaller diameter carry pain sensation). The fibres of the parasympathetic nervous system, which are the motor nerves to the sphincters and bladder muscle, are as fine as those which carry pain. These different types of nerve fibre have different susceptibilities to mechanical compression. The latter impairs the blood flow to eh nerves, thereby causing ischaemia and loss of nerve function. Small nerve fibres are much less resilient to compression than are the larger ones. 58. Several other important factors require consideration in relation to cauda equina syndrome. The first concerns the regeneration of nerve fibres that have been damaged by pressure. If a nerve fibre becomes ischaemic for a significant length of time then the part of it beyond the site of compression (i.e. distal) will wither (this is known as Wallerian degeneration). Each nerve fibre has a cell body, the integrity of which is essential if regeneration is to occur. The cell bodies for the motor nerves lie within the spinal cord, well away from (i.e. proximal to) the site of compression. The nerve fibres to the sensory nerves however reside close to the point where they exit the spinal canal and the cell bodies for the parasympathetic nerves are beyond the spinal canal and lie within the pelvis. Compression of the parasympathetic and sensory nerves to the perineum therefore occurs proximal to the cell body. If ischaemia is sufficient to cause death of the cell body, then there will be no recovery of function following relief of nerve compression. 59. Another important point to consider is that the nerve conduction in a single fibre is an all or none phenomenon (i.e. it either conducts normally or not at all). Thus, an incomplete lesion of a nerve root does not mean that the individual nerve fibres are partly affected, but that some of the nerve fibres within it are affected and non-functional, whilst others are conducting normally. 60. Cauda equina syndrome (CES) may be divided into two categories. Where compression has not caused complete damage to the autonomic nerve fibres of the bladder the syndrome is described as incomplete (CESI). In this instance the patient will have any combination of altered urinary sensation, loss of desire to void, poor urinary stream and a need to strain in order to micturate. When the syndrome becomes complete there is painless urinary retention until the bladder will hold no more urine, when dribbling overflow incontinence develops (CESR – i.e. CES with urinary retention). Initially the patient will be constipated because of lack of sensation within the rectum but, once the bowel is full, overflow incontinence ensues. 61 The time taken for mechanical pressure of a nerve root to cause ischaemia which results in Wallerian degeneration is short. Experimental work on peripheral nerves indicates that it may be less than 6 hours (Dyck et al 1984). These however are much larger fibres than the parasympathetic nerves within the spinal canal. The latter therefore are likely to be even less resilient. Experimental work in monkeys suggests that compression of the cauda equina must be relieved within an hour if recovery is to occur and that, beyond 4 hours, there is no benefit from decompression at all (Stephenson et al. 1994; Stephenson, personal communication). 62. It is not necessary to have normal function in all of the nerve fibres of the cauda equina to retain good control of the sphincters and perineal sensation. Therefore, patients with incomplete cauda equina compression may retain continence. Once cauda equine compression becomes complete, however, the prognosis for recovery is much poorer.”

The legal test

[17]For the Defendant Miss Gollop submits that there are two relevant propositions of law, both to be found in Bolitho v City and Hackney Health Authority

[1998] AC 232

. In that case the relevant facts can be taken from the headnote as follows:

“A two-year-old child was admitted to hospital suffering from respiratory difficulties. At 12.40 p.m. on the following day his breathing suddenly deteriorated and a nurse summoned the doctor in charge of the child's care by telephone. The doctor did not attend and in the event the child recovered. At 2 p.m. he suffered a second episode of acute respiratory difficulty which the nurse again reported to the doctor by telephone but the child apparently recovered without the doctor having attended. At 2.30 p.m. the child collapsed owing to failure of his respiratory system as a result of which he suffered a cardiac arrest. By the time his respiratory and cardiac functions were restored he had sustained severe brain damage. The child by his parents as next friends, and his parents in their own right, brought proceedings against the Defendant health authority for damages for negligence and adduced expert evidence that any competent doctor attending the child after the second episode of respiratory compromise would have arranged for prophylactic intubation so as to provide an airway and that such procedure would have avoided the cardiac arrest and subsequent injury.”

[18]Lord Browne-Wilkinson (with whom the other members of the committee agreed) cited the Bolam test: a doctor “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. He then went on to set out what were the issues in the case.

[19]At p239F-H Lord Browne-Wilkinson said:

“In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. But in this case there was no doubt: if the duty had been carried out it would have either been Dr. Horn or Dr. Rodger, the only two doctors at St. Bartholomew's who had responsibility for Patrick and were on duty.”

[20]At p240D-F he cited with approval the words Hobhouse L.J. (as he then was) in Joyce v. Merton, Sutton and Wandsworth Health Authority [1996] 7 Med.L.R. 1, at p. 20: “Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the Defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated."

[21]At p 240G he concluded:

“There were, therefore, two questions for the judge to decide on causation. (1) What would Dr. Horn have done, or authorised to be done, if she had attended Patrick? And (2) if she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second.”

[22]The present case is not one of a failure by a doctor to attend. It is an alleged failure to refer to another doctor. So the issue involves, not what the Defendant would have done if he had made the referral, but what a third party would have done, namely the surgeon responding to the referral. Given the rarity and other unusual features of CES, in this case the issue of breach of duty is closely linked to the issue of causation. What a GP ought to have done by way of referral to a Consultant must be considered in the light of what the Consultant would have done in response to the referral. If the only proper course open to the surgeon would have been to operate forthwith, then it may be easier to conclude (but it would not necessarily follow) that the only proper course for the GP would be to make the referral. That is in effect the evidence of Dr Rogers, the doctor who gave evidence of general medical practice for the Claimant, and of Mr Russell. But if there is another course that would have been open to the surgeon, and in particular if there is another course that the surgeon ought to have adopted (such as to wait and see if symptoms of CES appeared) then it may be more difficult to conclude that the only proper course open to the GP would have been to make the emergency referral.

[23]Adapted to the facts of the present case, Miss Gollop submits that the questions in Bolitho would become: “(1) What would the surgeon responding to the same day referral of the Claimant on 24th September have done? And (2) if she would not have(a) admitted that day and

(b) operated before midnight on 26th September, would that have been negligent?

[24]Unlike Bolitho, in the present case there is no evidence as to which surgeon, would have responded to a same day referral of the Claimant, if the Defendant had made one on 24th September. Counsel for the parties differ as to the consequence of this fact, and of the fact that the question relates to the acts of a third party (who did not give evidence) and not to those of the Defendant himself.

[25]For the Claimant Mr Briden submits that I must make a finding as to what would probably have happened if such a referral had been made – in effect the equivalent of the first question. He submits that I have the material to do that in the evidence of the neurosurgeons.

[26]For the Defendant Miss Gollop submits that in principle both those questions might fall to be asked where the complaint is of a failure to make a timely referral. As to the first, she submits that that question should be answered in a sense favourable to the Defendant. Alternatively she submits that it cannot be answered on the evidence in the case, there being no evidence as to which surgeon would have responded. Miss Gollop submits that the second question arises in each of these two events, namely, if the surgeon would not have admitted and operated before midnight on 26th September, would that have been negligent?

[27]There is little, if any, evidence of the practice of surgeons at the Royal London Hospital to whom a patient was referred in September 2001 with bilateral sciatica. Miss Gollop points to the referral that the Defendant did make of the Claimant in 1997. The difficulty with that submission is that it is not possible for me to make a finding that the Claimant had bilateral sciatica at that time. She may have, or she may not. The records are consistent with either alternative being the case. In any event the relevant surgeons’ practice in 1997-1998 may not have been the same as in 2001. I cannot embark on speculation.

[28]I also conclude that I cannot answer the question as to what probably would, or probably would not, have happened, as Mr Briden submits I should. He submits that I should answer that question by finding that the surgeons at the Royal London Hospital would all have adopted the practice of Mr Russell and the surgeons at the Western General Hospital in Edinburgh. There is simply no evidence of that at all, other than on the basis of an approach through the second question. It has not been submitted that I should approach this case as being one of a loss of a chance, that is, the chance that on emergency referral the surgeon might have adopted the practice of Mr Russell. I would not have been able to find what that chance was. On the evidence before me, that would have been speculation.

[29]It seems to me that in the present case the only means by which the Claimant could discharge the burden of proof (in the present case the burden of proof on breach of duty and causation) would be by satisfying the court that the proper discharge of the functions of the surgeon at the Royal London Hospital in September 2001 responding to the putative emergency referral of the Claimant with bilateral sciatica required that he operate upon her immediately. The Claimant would have to satisfy the court that the only proper course for a GP to whom a patient was presenting with bilateral sciatica, and the Claimant’s history, would be an emergency referral to an appropriate surgeon. That is what the evidence of Mr Russell was directed to establishing.

[30]So this case turns essentially on the neurosurgeons’ evidence, and in particular upon whether the Claimant can satisfy the court that the course advised by Mr Macfarlane is one which is not in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

The court’s approach to the expert evidence

[31]The other proposition for which Bolitho is authority is that set out by Lord Browne-Wilkinson at p243A-D:

“…there are cases where, despite a body of professional opinion sanctioning the Defendant's conduct, the Defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very 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 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.”

[32]No one suggests that Mr Macfarlane (or for that matter Mr Russell) is incompetent, or that they do not genuinely hold the views that they told me that they do hold. The issue between the experts is thus one of reasonableness.

[33]There is an asymmetry. For the Claimant to succeed she must satisfy the court that this is one of those rare cases where I should find that the views of Mr Macfarlane are not capable of withstanding logical analysis. The Defendant only has to persuade me that they are capable of withstanding logical analysis. The Defendant does not have to satisfy me that the views of Mr Russell are not capable of withstanding logical analysis. But as it happens, it is the view of each neurosurgeon that the view of the other is unreasonable, in the sense that his view is not capable of withstanding logical analysis. So far as the views of Mr Russell are concerned, I do not have to embark on an enquiry as to that, and I do not do so.

[34]The challenge facing the Claimant is a high one, given the qualifications of Mr Macfarlane. (I am not implying anything about the qualifications of Mr Russell: such comparisons do not arise here, for the reason just given). After qualifying with First Class Honours at Cambridge in 1981, Mr Macfarlane obtained his Doctorate of Medicine there in 1992. His first appointment as a Consultant was the same year (at the Royal London Hospital, as it happens). In 1994 he was appointed Consultant Neurosurgeon at Addenbrooke’s Hospital, where he has remained. Because of its rarity CES is not the subject of many publications, but the publications there are include one co-authored by Mr Macfarlane in 1990 with his then head of department, Mr Gleave, demonstrating that CES has been a special interest of his for some sixteen years. He lists two other publications co-authored by him on CES, in 2002 and 2005. The articles are all in the British Journal of Neurosurgery. None of this gives him any immunity from human error, but it does mean that his views generally command the respect of his peers.

The evidence of fact

[35]Given the way that the case has proceeded, the issues of fact between the Claimant and the Defendant have little if any impact on the outcome of the action. There were two issues, both relating to what was said at the consultation on 24th September.

[36]The first issue was whether the Claimant complained to the Defendant of numbness to her legs, as she claims she did. In the event, numbness in the legs is not relied on by Mr Russell as an indicator of CES. It is loss of sensation in the perineum that is one of the indicators, together with urinary and bowel dysfunction. The Claimant does not say that she suffered loss of sensation in the perineum until the morning of 27th September. And the Defendant’s notes and referral letter note the absence of any bladder or bowel dysfunction (thereby demonstrating that he had directed his mind to the possibility of CES).

[37]The second issue of fact is whether the Defendant gave the Claimant an appropriate warning of what to do if the symptoms of CES were to appear. His case is that he did advise her to contact him (or dial 999 out of hours) if she did develop numbness of either her front or back passages. She says he did not. This issue does not affect the outcome of the case for two reasons. First, the Claimant accepts she was aware of the significance of the development of such systems. She says her mother told her to go to hospital if these symptoms developed, and she did in fact go to hospital as soon as she was aware that they had developed. Secondly, as Mr Macfarlane pointed out, the Claimant was unfortunate in that the syndrome developed very quickly and overnight. So the first she knew of the symptoms was when the syndrome had advanced to the point of urinary retention, which happened between midnight on 26th and about 5am on 27th September. So any failure by the Defendant to give the advice would have had no effect.

[38]Nevertheless, in view of the importance of this case to the parties, I shall set out my findings on their evidence.

[39]In her evidence in chief in the form of a written witness statement, the Claimant states that after leaving school she worked in a retail store as a sales assistant for 4 ½ years, until she married her husband Peter in 1989. He is a driver for the Post Office. She soon had her first baby. She did not return to work, being fully occupied looking after her young family. In September 2001 she and her husband had three children, and they have since had a fourth.

[40]She describes the background to the events in question as follows. She states that she first developed back ache in about 1995 which she treated with pain killers. She states that she went to see her GP about back problems in 1996 and that in 1997 he said he would refer her to a consultant. In January 1998 she went to see Mr Natali, Consultant Orthopaedic Surgeon at the Royal London Hospital. A MRI scan was rearranged, after initial difficulties, in July 1998 whilst she was under sedation. She recalled that she was advised that this revealed some degenerative changes in her spine and she attended physiotherapy sessions.

[41]After that problems continued. People remarked about her awkward posture and she continued to suffer backache. At that stage she had two children and was busy looking after them. The pain sometimes responded to pain killers and sometimes eased up. She said that she never experienced numbness in her legs or tingling in her legs before September 2001. In June 2001 she started to develop very severe lower back pain which was not relieved by pain killers so she went to see her GP again. He said she probably had a urinary tract infection and prescribed anti-biotics and pain killers.

[42]The contemporaneous documents from her medical records are largely consistent with this account, but not entirely. It was the Defendant who referred the Claimant to Mr Natali by letter dated 17 November 1997. This records recurrent back pain over the preceding 18 months. The letter goes on to state that “she developed back [pain] on the right side of her lower back which gradually spread throughout the lower back and down her legs where she had pins and needles”. The letter also records that there were no bowel or urinary symptoms at that time.

[43]This referral followed a visit to the Defendant on 11th November 1997. She must have been in great distress, because on 13th November 1997 the clinical notes show that she again attended the surgery and saw one of the Defendant’s colleagues, Dr Hanbury. She told him she was not prepared to wait for the outpatient appointment according to the note he made at the time. He referred her to the Accident and Emergency department that she attended that afternoon. An x-ray was performed and she was diagnosed with muscular skeletal lower backache. It is not in dispute that, as Mr Russell explained, an x-ray neither proves nor disproves disc prolapse.

[44]The Claimant stated that what she suffered in 2001 was different from what she suffered in 1997. On 14th June 2001 she saw the Defendant. He noted that she complained of back pains for the previous week. Amongst other things he recorded that she was not suffering from bowel problems. He prescribed medication for a suspected urinary tract infection.

[45]The Claimant states that by 2001 her backache was getting worse. She states that around the weekend of 8th and 9th September her backache was particularly severe, 9th September being a Sunday. She states that she visited the Defendant the following Monday morning 10th September. She states that he made light of it and told her to get someone to look after the children for a few weeks so that she could do less work. The Defendant made no record of any such consultation, and has no recollection of it. Mr Briden in opening the case, referred me to this part of the evidence, but it is common ground that I do not have to make any findings about it, because it does not affect the outcome of the case in the light of the other evidence, in particular that of the experts.

[46]It happens that the Claimant’s mother works as a secretary to a Consultant Neurologist at the Royal London Hospital. In about mid September, she and her colleagues remarked on the Claimant’s appearance and advised her to see her GP. Over the weekend prior to 24th September 2001 (which is a Monday) the Claimant states she was in excruciating pain. She states that she had never experienced anything like what she suffered then in the past. She said that when she took a bath she could not get out of it without assistance from her husband and when she sat on the toilet she could not get up because her legs would not lift her weight. She also states that she could not feel her legs and that the sensation in her legs felt like a numbness, but with a tingling at the top of her legs around the base of her back.

[47]She again consulted the Defendant and he noted that she had a recurrence of back pain over the previous three weeks. He also noted that her bowels and urine were normal. He did not record anything about numbness or tingling in the legs, or her difficulties in getting from the bath or the toilet. He dictated the referral letter addressed to Mr Natali and this was typed up and dated 26th September 2001. As already noted, in it he refers to the history in 1998 and goes on to state: “In the last four months she has had two exacerbations. The last one was three days ago when she woke up with the back pain. This radiated down both legs and she was only able to get out of bed with some difficulty. There is no associated urinary or bowel problem and was only barely able to walk”.

[48]The letter then continues to describe the symptoms apparent on examination. The letter includes the following: “I wonder if there has been a progression of the disc protrusion and would value your help”.

[49]A history is also given in the discharge summary from the Royal London Hospital. She had been admitted on 27th September and discharged on 10th October. This referred to a six day history of low back pain superimposed on a longer history of chronic low back pain. It stated that for four days she had experienced bi-lateral sciatica in the posterior aspect of both thighs radiating to the ankles without sensory disturbance. On the day of admission she had gone into urinary retention and had not passed urine for twelve hours prior to admission with a residual volume of greater than one litre on catheterisation. There is there no mention of numbness or tingling in the legs.

[50]The records of the Accident and Emergency department, to which she had been admitted at 5.48am on 27th September, are to a similar effect. There is reference to presenting with urinary retention, leg cramp and back pain but no reference to numbness or tingling. In the history section, it is recorded that six days previously she had difficulty getting out of bed and that her back pain of eight years standing had got worse. It records that she was able to stand with difficulty and had difficulty in rising from sitting if not using her arms or hands to push herself up. It records that she had been suffering from cramps on the anterior aspect of her thigh and calf muscles. In addition, the notes record her urinary retention, and in particular that she had last passed urine at about midnight and had last opened her bowels the previous morning. It is noted that she also feels numb around the anus.

[51]The notes of the neurosurgeon taken at 13.15 hrs that day are to a similar effect. The symptoms with which she was presenting were described as urinary retention for 12 hours and leg cramp and back pain for 8 years. Included in the history is the difficulty in getting out of bed for the previous six days, a constant pain radiating to the posterior aspect of both thighs and ankles and a loss of sensation on her buttocks since the commencement of the urinary retention at midnight. In respect of this it is noted that she had had no similar symptoms previously.

[52]In oral evidence the Claimant was emphatic that she had told the Defendant and the doctors at the hospital that she could not feel her legs and she said that she could not recall telling them that she was suffering from cramps.

[53]There are also general surgery clinical notes from 12.30 on 27th September. She was referred by A&E. The history there recorded includes that four days previously she suffered radiating pain into the posterior aspect of both thighs, which was constant, not worse when she was walking. It records that there was no numbness in her feet but that her buttocks were numb and she suffered tingling in her fingers. The Claimant did not agree that this is what she had told the doctors. She said that she had told them that she could not feel her legs and that she did not say that she had numb buttocks. She said the note is wrong. The numbness started on 23rd September and she had not had it before.

[54]The Claimant attended the consultation with the Defendant on 24th September with her husband. There is no dispute that she was very distressed during that appointment and in great pain. There is no dispute that she asked the Defendant to refer her to the neurologist for whom her mother worked, and the Defendant declined to do this. Other matters are in dispute. The Claimant says that the Defendant told her that she had muscle pain that she should rest and not lift anything heavy and if she was not any better within four to six weeks time she should go back to see him. She says that although he prescribed some medication he gave her no other advice. She states that he did not say that he would refer her to Mr Natali or to anyone else. He did not mention a referral at all.

[55]Mr Zarb’s evidence in chief in his written witness statement is consistent with Mrs Zarb’s in most respects. He also states that she told the Defendant that she could not feel her legs properly. But he differs from her in that he says that the Defendant did mention a referral. He says that the Defendant said that if she needed to be referred anywhere at all it would be to an orthopaedic consultant not to a neurologist. He says that the Defendant told the Claimant that if she was still in pain in four to six weeks time then he would refer her to an orthopaedic surgeon.

[56]Both the Claimant and Mr Zarb state that it was the Claimant’s mother who told the Claimant that if the pain got worse, or if she could not pass urine, that she should go straight to hospital to the Accident and Emergency Department. They both say that the Defendant did not give the Claimant this advice. The Defendant on the other hand states that he did give her that advice. He states that he explained the nature of acute back pain to her and what the usual outcome would be if she rested and took pain killers. He states that he explained to her that she could call the surgery during opening hours and speak to him if her symptoms worsened, particularly if the pain changed became unbearable, was not relieved by the pain killers, if she developed numbness in either her front or back passages or her legs or if she was unable to control her bladder or bowels. If her symptoms worsened out of hours he said that he advised her she should call 999. He also stated that it was his usual practice in dealing with patients with back pain to deliver them a leaflet printed off the surgery computer system.

[57]Significantly, in his statement the Defendant says that he checked that the Claimant’s urinary and bowel functions were normal and she was not complaining of anything unusual and no numbness around the perineal area was experienced. That is consistent with his own contemporaneous note of the consultation which records that there were no urinary or bowel problems. He explained that if there had been such problems he would have regarded them as what is referred to as “red flag symptoms”. Such problems would have indicated to him the possibility of CES, given his knowledge of the history of this particular patient, whom he had known for some years. It was not suggested to him that his recording of absence of urinary and bowel problems might have been for any reason other than a concern about CES.

[58]In his oral evidence the Defendant stated that he was quite sure that the Claimant had not mentioned that she could not feel her legs. He said that if she had said that it would have made him jump and it is not something he would forget. It was suggested to him that it would be very significant if she had said that and he agreed. He said that it would have been his usual practice in a case such as this to test for numbness, but he has not recorded having done so and could not specifically remember having done so. But he would not test for numbness in the perineal area unless a patient complained of numbness there because it would be a sensitive examination. Although he said that CES is an unusual condition and that he has only ever seen one case of it, he said that he was nevertheless aware of it. He said that he told her that he would refer her to the back surgeon who knew her and that a referral to her mother’s neurosurgeon would not be appropriate. He remembers her asking for that and refusing to do it. If he had thought that she might be at risk of CES he stated that he would have been on the telephone to the hospital straight away to arrange an immediate admission.

[59]The Claimant gave her oral evidence with difficulty. It was apparent that she was in discomfort. On most points she gave her evidence with little hesitation and was sure that her recollection of events was correct. It is notable that the main point on which there is a conflict of evidence is what was said and done at the consultation with the Defendant on 24th September. The circumstances of that consultation were on any view ones on which the Claimant was suffering excruciating pain. I have no doubt that she would have been doing her best to understand what the Defendant was saying to her, but she would in the circumstances have found that difficult. Her difficulties were compounded by the fact that, as is common ground, what she was asking the Defendant to do (namely refer her to the Neurologist for whom her mother worked), was something that the Defendant was declining to do. Given that he was refusing what she regarded as an important request, she may not have been giving her full attention to what he was saying.

[60]Because the issue of special damages was not agreed until the mid-day adjournment on the second day, much of the morning of that day was occupied with cross-examination of the Claimant on her schedule of special damage. Although that is no longer an issue in the case, it is of assistance to me in assessing her as a witness. A number of expenses were claimed in relation to the double incontinence. She claimed for the costs of two replacement orthopaedic mattresses, one in January 2002 at £250 and one in November 2003 at £300. She claimed for additional household expenses between the date of her discharge from hospital on 11th October 2001 to 6th November 2006, the first day of the trial. These include a number of items including extra washing powder, additional laundry and electricity costs and the purchase of two pairs of extra sheets a month, being the most significant, adding up to over £1000 each. There are no documents to support these purchases. In addition she claimed the cost of additional clothing resulting from soiling herself again over the same period. There are three items again each for over £1000, being extra pairs of pants, a tracksuit per month and a pair of trousers with elasticated waist per month. The costs of all these items were claimed as a weekly cost multiplied by the period 11th October 2001 to 6th November to 2006.

[61]The Claimant found great difficulty in answering questions about this part of her claim. The main cause of her difficulty was that, before being asked about these expenses, she had claimed that her bowel problem has, since the date of the operation, been that she has been unable to evacuate herself more frequently than once a month or even once every three months. It was not clear what she meant by this. The condition of her bowels is as set out below. The point made in cross-examination was that there was an inconsistency. If her condition was as she had said, it is hard to understand the attribution of these additional expenses and purchases to soiling and staining. When pressed she stated that at least in the first two years after the operation she had had great problems with faecal soiling of clothes and sheets. That left the claim for the remaining period unexplained.

[62]The questioning clearly caused her distress as well as difficulty. This was through no fault of Miss Gollop. In fact, Miss Gollop’s attempts to be discreet, and not to read out loud the medical and other sensitive information, led me to wonder, on the first day, whether the Claimant was able to follow the questions at all on some points. Fortunately, on the second day the Claimant was able to sit with a lady from the Witness Support Unit. The lady deserves the thanks of the Court. She read the documents to the Claimant, much as an interpreter would. That satisfied me that the Claimant was following the questions, but it did little to relieve her distress or to enable her to give answers to the questions.

[63]She was tearful and I adjourned for two periods during the morning, one of 25 minutes and one of a quarter of an hour. After the second of the adjournments, the evidence of Mr Zarb was interposed and that took the remainder of the morning before the midday adjournment. Following the agreement on the Special Damages made at the midday adjournment the Claimant was not asked any further questions in cross-examination and only a few questions in re-examination.

[64]The cross- examination during the first part of the morning before the topic of the expenses claims was directed to a number of letters and medical records in 2000 and in 2004 which recorded attendances by the Claimant at clinics for problems associated with her bowels. She was unable to answer many of the questions, saying she simply could not remember having the conditions in question or having attended the clinics at all. She denied having had any bowel problems before September 2001. She said she could not remember taking the medication prescribed for that condition, in particular Lactulose.

[65]The Defendant gave his oral evidence in the manner which one might expect from the experienced general practitioner that he is. He readily stated what he could not remember, or could not explain, and distinguished clearly between such matters and those which he could remember. He gave his evidence with care. His evidence was consistent both internally and with the contemporaneous documents. Being a doctor, he had the advantage of having made contemporaneous records in the form of notes and the referral letter immediately after the consultation with the Claimant on 24th September 2001.

[66]In my judgment it is very improbable that all the contemporaneous notes taken by the different doctors who saw the Claimant on 24th and 27th September should be mistaken, and consistently mistaken, as the Claimant alleges. I find that the notes do accurately record what the Claimant said, and are a reliable indicator of what she did not say, to the various doctors at the time.

[67]I have no hesitation in preferring the evidence of the Defendant to that of the Claimant and Mr Zarb. I do not thereby mean to suggest that the Claimant or her husband were attempting to mislead the court as to what happened on 24th September 2001. Miss Gollop made clear that she was not suggesting that the Claimant was lying. The Claimant and her husband have become confused, which is not surprising in circumstances which were so painful and distressing to both of them.

Evidence of the Experts on General Medical Practice

[68]Dr Rogers is an experienced general practitioner. His essential conclusion is that on 24th September the Defendant was aware that there may have been an extension of disc prolapse (see his referral letter), there was bilateral sciatica and increased reflexes. In his opinion this made full examination mandatory and likewise the seeking of urgent advice from the duty orthopaedic surgeon. Failure to do this would be negligent as bilateral sciatica with any associated neurological abnormality, is indicative of imminent CES. In his opinion all responsible doctors would have sought urgent admission as a case of developing CES on 24th September.

[69]It is immediately apparent, that this conclusion is based on his understanding of CES and the manner in which it develops, sometimes to such disastrous consequences. To that extent the force of his opinion must be assessed in the light of the evidence of the neurosurgeons.

[70]In the performance of his duty to the court, Dr. Rogers produced a number of so called Guidelines drafted for general practitioners to assist them in the diagnosis and management of acute low back pain. These guidelines do not support Dr Rogers’ opinion. He comments that there were no well researched guidelines in operation in 2001 which specifically dealt with CES in any detail. In short he says they are all wrong.

[71]In one of the guidelines, which was printed this month November 2006, from a website doctorupdate.net there is this entry: “Red flags: bilateral sciatica saddle anaesthesia and bowel and/or bladder dysfunction suggest central disc protrusion. This is a neurosurgical emergency”.

[72]As to this, Dr. Rogers comments that bilateral sciatica is considered a red flag condition, but in the context of other symptoms. But it was his evidence that bilateral sciatica is a red flag condition even when unaccompanied by the other symptoms (namely saddle anaesthesia and bowel and/or bladder dysfunction).

[73]The other guidelines which he said were wrong were those issued by the Royal College of General Practitioners dated February 2001. These were the guidelines current in September 2001. Under the heading “Cauda Equina Syndrome: emergency referral” there appear three points. The first is sphincter disturbance, the second is gait disturbance, and the third is saddle anaesthesia. The note to this document reads as follows: “This brief clinical guideline is intended to assist in the management of acute low back pain. It presents a synthesis of up to date international evidence and makes recommendations on case management”.

[74]There are a number of other headings but it is not easy to fit the symptoms of the Claimant, as recorded by the Defendant, into any of the headings. So far as CES is concerned, he did not find sphincter disturbance and she did not complain of saddle anaesthesia.

[75]Miss Gollop naturally makes the point, by reference to the Notes, that if the guidelines are indeed a synthesis of up to date international evidence, and do not support Mr Roger`s personal opinion, as they do not, then it is difficult to see how the Claimant can discharge the burden of proving that the course advocated by Mr Rogers is the only course which a responsible general practitioner could have pursued in the circumstances in which the Defendant found himself on 24th September 2001.

[76]On behalf of the Defendant, Dr Williams gave evidence of general medical practice and CSE. In addition to his professional qualifications and twenty seven years experience, Dr Williams recorded that he is a member of the Management Board of the Medical Defence Union (“MDU”). He also recorded that his instructions came from the MDU who act for the Defendant. On this footing, he was cross-examined to the effect that he lacked, or appeared to lack, the independence necessary for the fulfilment of the duties of an expert giving evidence to the court. He did not accept this. I make no finding that he was lacking in independence, but it seems to me that there may be a point which the MDU ought to consider if they have not already done so, in the light of appropriate advice.

[77]In Dr Williams’ opinion, which was shared by the other experts (subject to the central issue in the case) the Defendant’s notes and letters generally demonstrated a high level of care and competence. The Defendant had shown, by his reference to bowel and bladder disturbance, that he knew the potential seriousness and was looking for signs of nerve compression. In Dr Williams’ opinion there were no grounds for believing that the Defendant was in breach of his duty for not acting more promptly in arranging for the Claimant to be seen in hospital in connection with her back problem. In a later statement, given in the form of a letter, he added that “as a general practitioner, I would anticipate finding it difficult to procure admission to hospital if the sole problem was bilateral sciatica”. He later added:

“While I agree cauda equina outcome is better if surgery is performed prior to bladder function disturbance (as Mr Russell says in his report), bilateral sciatica (particularly in someone who has had this previously without evidence of cord compression) does not mandate admission to hospital. If it did neurosurgeons would be referred many more cases from the community. Certainly patients with bilateral sciatica should be warned to report any bowel or bladder dysfunction (as was done here) but I see no reason to criticise [the Defendant] for failing to refer her as a matter of urgency when he found no supporting features of cauda equina”

The Evidence of the Neurosurgeons

[78]The first report of Mr Russell is dated 10 September 2004. It is substantially uncontroversial. His central opinion expressed in that report is: “If, when Mrs Zarb visited her general practitioner on 24 September 2001, there was bilateral sciatica as would seem to be indicated by the hospital notes and Mrs Zarb advised her general practitioner of this, then the opportunity for prompt surgery was missed. There is no doubt in my mind that had Mrs Zarb been referred to hospital on 24 September 2001 and had undergone a procedure similar in timing and scale to what she did undergo on 27 September 2001, then her bladder on the balance of probability would be entirely normal today. This argument also applies to her bowel dysfunction”…..

[79]This report is relatively brief, being some eight pages long, without citation of publications.

[80]The report on liability by Mr McFarlane is dated 5th December 2005. By that time he had the benefit of seeing the expert reports of Dr Williams and Mr Russell. Mr McFarlane remarks on the relative rarity of CES. He says this: “55 In the overwhelming majority of cases of symptomatic lumbar disc prolapse, the posterior bulging of the disc annulus occurs to one or other side of the mid line. This causes pressure on nerve routes that are immerging from the lumbar canal on that side at that level. Leg pain is referred in the distribution of that nerve (sciatica) and is usually accompanied by altered sensation in part of the leg and/or foot and sometimes by limb weakness. However, in around 2-3% of cases the disc prolapse is central, where it can compress not only to the nerve roots to the lower limbs but those subserving sensation to the perineum (i.e. the saddle area) and the parasympathetic nerve involved in the control of bowel and bladder function (together with those nerve roots are called the cauda equina, having been likened to a horse’s tail)”.

[81]He then goes on to describe the syndrome in terms set out above in this judgment. Following that he discusses in detail the published literature.

[82]Mr McFarlane then goes on to consider the facts. His interpretation, as is common ground, is that the main symptoms of CES namely impaired sphincter control and altered perineal/buttock sensation, had not developed until the night of 26/27 September. Referring to the numbness which the Claimant said she had told the Defendant about in her legs, he states that he cannot recall a single article in the literature which would consider bilateral sciatica with sensory disturbance confined to the legs to represent CES.

[83]Commenting on Mr Russell’s report, Mr McFarlane says:

“… Whilst it is undoubtedly true that many medical conditions would have a better outcome if their development could be predicted before they had actually occurred, it seems extraordinary that he should find [the Defendant] culpable on this account. 74 The overwhelming majority of lumbar disc prolapses will settle with conservative measures and without recourse to surgery. In our series, only 3% of lumbar discs that presented to neurosurgery … went on to develop cauda equina syndrome. Whilst it is undoubtedly true that bilateral sciatica increases the risk of cauda equina syndrome, only 6% of patients with a central disc prolapse would go on to develop this condition. 75 Bilateral sciatica is therefore listed as a red flag symptom (i.e. it is a risk factor for the development of CES)... I agree with Dr Williams that a patient with uncomplicated bilateral sciatica does not require a referral to hospital. A history of bilateral sciatica requires a detailed account be taken from the patient to ensure that they do not have symptoms of altered perineal/bladder/bowel sensation or impaired sphincter control, and it also requires them to be made aware of the need to seek urgent attention should either occur. I do not believe that the neurosurgery team would have admitted her with bilateral sciatica alone. … Bilateral sciatica without any cauda equina symptoms does not require emergency admission to hospital… 78 Whilst I agree with Mr Russell that the outcome for cauda equina syndrome is very much better if the condition is incomplete at the time of presentation, his notion that bilateral sciatica mandates emergency surgery to prevent the development of this syndrome does not stand up to logical scrutiny. Lumbar disc surgery is not without its complications. Whilst the risk of causing injury to a lower limb nerve route or the cauda equina as a consequence of the procedure itself is extremely small, unfortunately around 10 to 15 % of patients who undergo uncomplicated surgery will develop an excess of scar tissue around the nerve roots/theca. This can give rise to to chronic back/leg pain, known as the “failed back syndrome”

. Sadly a significant proportion of patients who develop this condition suffer life long pain and disability of varying degrees which renders them incapable of work. 79 If surgery were to be offered to every patient with uncomplicated bilateral sciatica it would reduce the number of patients who go on to develop cauda equina syndrome. However, if those patients are advised to seek attention before the syndrome becomes complete then, in any case, the majority will have a good outcome. Were the surgical community to adopt Mr Russell’s proposal then many more patients would have a bad outcome from developing “failed back syndrome” than would be spared from the consequences of cauda equina syndrome. It is for this very reason that these patients are not treated as emergency in hospital or offered urgent surgery. Overall their outcome would be very much worse than if surgery were offered only to those whose sciatica did not settle with conservative measures, or who went on to develop symptoms/signs of cauda equina syndrome. I strongly disagree with Mr Russell that bilateral sciatica, by itself, is an indication of hospital admission and surgery. 80. It is very unfortunate for Mrs Zarb that she is one of the relatively small percentage of patients that go from having no cauda equina symptoms to a complete lesion within a very short period. The evidence indicates that her lesion was already complete at the time she was admitted to the Royal Hospitals Trust. Once this point has been reached it is my opinion that emergency surgery confers no benefit. It is for this reason that she has had a poor result from surgical decompression. For Mr Russell to blame this on the actions of [the Defendant] on 24th September 2001 is, in my opinion grossly unjust”.

[84]The significant reasoning of Mr McFarlane is to be found in paragraphs 78 to 79 of his report. He is carrying out “the assessment of medical risks and benefits, which is a matter of clinical judgment which a judge would not normally be able to make without expert evidence” (see Bolitho p 243c). This is not an exercise which Mr Russell had embarked upon in his report.

[85]The neurosurgeons discussed the case by telephone on 22nd September 2006. They agreed that on 24 September 2001 the Claimant did not have CES. They agreed that she did not have any of the features necessary to make a diagnosis of CES (saddle sensory loss, impaired urinary/rectal sensation or impairment of bladder/bowel control of neurogenic origin). However, they also agreed that on that date she displayed what are called red flag symptoms i.e. clinical features which indicate the patient is at increased risk of developing CES (in this case the fact that she had bilateral sciatica).

[86]They then turned to the central question “would it be reasonable for a neurosurgeon not to admit the Claimant for treatment [had she been referred on 24th September 2001]?” The neurosurgeons disagreed in their answers to this question. Mr Russell expressed the opinion that “it would not have been reasonable for a neurosurgeon not to admit the Claimant for treatment, in other words the only reasonable action would be to admit the Claimant under the circumstances described”. In his oral evidence he explained that the word “admit” there, was being used in two senses, the first sense being to see on the ward, and the second sense being to admit in the formal sense. This is the first occasion in the written evidence in which Mr Russell addressed the Bolam test.

[87]Mr McFarlane’s answer to that question was that he would not have admitted the Claimant as an emergency on 24th September, but would have arranged to see her as an outpatient within two weeks.

[88]The neurosurgeons then turned to the question whether, if the Claimant had undergone surgery on or shortly after 24th September 2001, there would have been any possibility of complications arising from that surgery. They agreed that there would have been the possibility of complications in as much as there is always a risk of complications arising from the surgery. Around 10 to 15% of patients with uncomplicated unilateral sciatica will have a poor result from surgery, most commonly due to scar tissue formation around the nerve root giving rise to chronic leg pain. They also agreed that removal of a central disk prolapse can be substantially more difficult than the much more common finding of a lateral disc prolapse.

[89]The two neurosurgeons then considered some of the literature. Mr McFarlane relied upon a study by Hussain et al (2003) and one by Fager (1985). Mr Russell did not find these helpful and regarded them as problematic and not consistent. However, he stated the following:

“Mr Russell’s opinion was that there was at least an indication for emergency admission and investigation on 24th September 2001 with surgery being a possibility, depending on the results of the investigation.”

[90]In his oral evidence Mr Russell stated that bilateral sciatica is not by itself a condition which would lead him to operate. The patient would first have to be investigated to find the cause, and that would be by MRI. If it appeared that the patient had a central disc prolapse, it is that that would lead Mr Russell to offer surgery, and the surgery would be such as Mr Sabin in fact carried out on the Claimant.

[91]Consistently with this, Mr Russell said in his oral evidence that he could not say whether or not the Claimant would probably have been operated upon on 24th September if she had been referred then and assuming the surgeons had adopted the approach that he says is the only proper one. He said that the answer to that question would depend upon the circumstances of the presentation. If he had seen her, and if the scan had been positive for central disc prolapse, then he would have offered surgery. Asked what he thought the scan would have shown on 24th September, he said that it would have been positive, but whether or not it would have been positive to the same degree as it was on 26th September he could not say. The protrusion could have increased between 24th and 26th September.

[92]In his oral evidence, Mr Macfarlane summarised what he said were some important features of the two papers, Fager and Hussain. He noted that in Fager’s study of 243 patients in the United States, no patient had a post operative neurological deficit when it had not existed before the operation. So in no case did Fager cause the incontinence by operating. But the percentage of patients showing full recovery with minimal or no neurological deficit was 85%. As to those whose outcome was poor, he accepted that Fager’s study offers no evaluation of how poor these outcomes were.

[93]By contrast, Hussain’s study related to a sample of twenty patients in the UK. Mr Macfarlane said that Hussain reported that two out of a group of ten patients in his sample complained of bladder problems which they did not have before.

[94]While the outcomes reported in the two publications are different, Mr Macfarlane did not accept that they are inconsistent. He noted that Fager’s study related to patients all of whom he had operated upon himself, and all of whom were operated upon electively. Such good results could not be expected from patients who were operated upon by whichever surgeon happened to be on duty at any hospital when a patient presented as an emergency.

[95]He also noted that in Fager’s study 73% of patients presented with unilateral sciatica, and in his own experience those with unilateral sciatica represented about two thirds of the patients with CES. A point that he made is that a surgeon adopting Mr Russell’s approach to patients with bilateral sciatica ought logically to adopt the same approach to those presenting with unilateral sciatica.

[96]Mr Macfarlane’s experience of operating upon patients who have CESI (see para 60 of his report), that is when the symptoms of CES have appeared, but not yet developed to the point of urinary retention, is that they do have a good outcome. That is one reason why he would not operate until a patient reported that the symptoms had started to appear. Normally the development of the syndrome is long enough to give an opportunity to operate before urinary retention. It was unfortunate for the Claimant that in her case the syndrome developed very quickly, and that it did so in the night.

Causation

[97]I shall address the issue of causation first. The starting point is the agreed opinion of the neurosurgeons that, if the Claimant had undergone surgery shortly after 24th September, the incontinence suffered by the Claimant would in all probability not have occurred. For the reasons given at paras 23 to 29, the question that remains for me to answer is: would a surgeon have been negligent if he would not have admitted the Claimant that day and operated before midnight on 26th September?

[98]Mr Briden submits that the surgeon would have been negligent, because surgery before midnight on 26th September was the only course open to the surgeon to avoid the very serious outcome of double incontinence. He submits that Mr Macfarlane’s view comes down to saying that what happened to the Claimant is merely a mater of bad luck. He submits that this not an acceptable conclusion to reach.

[99]Mr Briden submits that the logical flaw in Mr Macfarlane’s and Dr Williams’ approach is that patients like the Claimant are bound to slip through the net, as he puts it. By that he means that Mr Macfarlane and Dr Williams are accepting the inevitability of a number of patients with CES being operated upon, like the Claimant, at a time when the chances of a good outcome are very poor. Dr Williams said in terms that even with exemplary care it may not be possible to prevent CES patients from suffering as the Claimant does.

[100]For this attack on Mr Macfarlane’s logic to succeed it is necessary to address the reason Mr Macfarlane gives for his willingness to countenance this state of affairs. And the reason he gives is that the factors which would weigh in the balance against surgery are, in his view, that the risks inherent in surgery are themselves so serious that they outweigh the risks of not operating.

[101]Mr Briden addresses this point by submitting that the potential complications of surgery may be less serious than the condition which it sought to prevent. If an attack is to be mounted against Mr Macfarlane’s position, I accept that an attack along these lines would be one that could in principle succeed. If Mr Macfarlane has overestimated the risks in surgery, then his argument may be flawed.

[102]The difficulty is that this invites a fact based enquiry upon which I received no evidence. Mr Russell did not attempt to demonstrate that Mr Macfarlane was wrong. At the highest, he disputed that the publication referred to by Mr Macfarlane supported his position. I was provided with copies of the two publications, Fager and Hussain, by Miss Gollop for me to read after speeches were concluded (although she did draw to my attention to one passage of Hussain her closing speech). The articles were not investigated in cross-examination of Mr Macfarlane.

[103]Mr Russell accepted in his oral evidence that by embarking upon surgery with a patient without there being symptoms of CES, the surgeon would be incurring the risk of causing the very condition (namely incontinence) that he was trying to prevent. He said that in his department this risk eventuated in about 1 to 2% of cases. Other risks that eventuated were the re-collapse of the disc and the development of scar tissue (which causes back pain). Overall his department’s experience of unfavourable outcomes was consistent with the figures in the literature, namely 10-15%. Patients therefore have to be consented very carefully. He said he sees no merit in Mr Macfarlane’s approach of balancing risks. The window of opportunity for surgery with a good prospect of success in preventing incontinence is, in his view, between the onset of bilateral sciatica and the onset of bladder problems.

[104]The result is that I am in effect left with two contradictory opinions, one that the likely benefits of surgery before onset of the symptoms outweigh the risks, and the other to the contrary.

[105]It has not been shown to my satisfaction that Mr Macfarlane’s assessment of the risks is illogical or wrong. For that to be shown, then, as it seems to me, there would have to be the same sort of investigation into the patients and their histories as would be required for the sort of paper that Mr Macfarlane and others publish in the medical journals.

[106]That is my conclusion on the Bolam test as applied to the views of Mr Macfarlane. His views are in my judgment in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. It follows (on the evidence in this case) that it cannot be shown that, if the Defendant had made the emergency referral on 24th September, the Claimant would have had the operation an earlier than she did have it, or so early that she would probably have avoided the disabilities which she in fact suffers as the result of the operation that was in fact done.

[107]But the issue of causation would not stop there. There is the factual issue specific to the Claimant. Assuming a surgeon such as Mr Russell were to have responded to the putative emergency referral on 24th September, Mr Russell was unable to say what in fact such a surgeon ought to have done in the particular circumstances of the case. That would have depended on the results of the MRI scan that would have been done.

[108]As Miss Gollop submitted, Mr Russell’s evidence presents a difficulty for the Claimant. It was not Mr Russell’s evidence that he would have admitted the Claimant on 24 September for immediate surgery without any investigation such as a scan. The difficulty is that there is no evidence as to what a scan would have shown if the Claimant had been admitted and investigated on 24th September 2001. The timing in this case is crucial. The Claimant did not complain of symptoms of CES before she went to bed that night. Had she been operated upon any time before midnight on 26th/27th September she would have had to consent to the operation, having had explained to her the risks of poor outcome in 10-15% of such cases, without knowing whether she was going to be one of the 6% of bilateral sciatica sufferers who were going to go on to contract CES. It would have been a most unenviable assessment of risk to have to undertake in her position.

Breach of duty

[109]Against that background, I turn to the issue of negligence. I do this having found that it would not have been negligence on the part of a neurosurgeon to whom the Claimant might have been referred not to admit her, provided that he advised her to return to hospital if and when she first felt saddle anaesthesia or urinary or bowel dysfunction. On that finding, it must follow that a GP who followed effectively the same course, that is who did not make a same day referral, but who advised the patient to return to him or to hospital under the same conditions, would not be negligent either.

[110]Moreover, given the guidelines that were made available by the Royal College of General Practitioners in February 2001, there would be a major obstacle to my finding that there had been a breach of duty in this case. For this purpose I approach the case on the footing that the view of Mr Russell is to be preferred as to what course was open to a reasonable neurosurgeon. It is in principle possible that the Guidelines of the Royal College might fail the Bolam test. But it is difficult to envisage the circumstances in which a judge would be bound to reach that conclusion.

[111]In my judgment Dr Rogers’ approach represents what might well be good advice to a GP who is uncertain what the best neurological view might be. A GP making a same day referral is unlikely to be in breach of his duty to his patient, whatever effect such a practice might have upon his relationship with the surgeons and hospitals to whom the referrals may be made. But it does not follow that a GP who trusts his own judgment, and acts as the Defendant did, will be in breach of his duty. In my judgment the Defendant was not in breach of his duty of care.

General Damages

[112]On the conclusions I have already reached, the issue of general damages does not arise. However, in case another court should need to know my views, in brief they are as follows.

[113]As already noted, there is no dispute as to the fact that the Claimant suffers permanent total loss of urinary function and sexual enjoyment. The issue, such as it is, is the extent of the permanent loss of bowel function. Mr Russell examined the Claimant on 14 January 2005 for the purpose of reporting on her condition and prognosis. He describes her bladder and bowel condition as follows:

“Bladder problems in that she has to self catheterise her bladder every two to three hours. She says she has no sensation of inserting this catheter and is only aware of her bladder being full when she develops generalised tummy ache. She says this is not like the normal sensation of a full bladder. She wakes once or twice at night with this generalised abdominal pain and has to catheterise herself at this time. Bowel disturbance. By this she means she has absolutely no normal sensation of wishing to empty her bowels and she is only that she must do so when she develops generalised abdominal pain, feels bloated and occasionally swells up such that she increases by one clothes size.”

[114]In oral evidence he explained that the large bowel will not evacuate itself and so must be assisted. For this purpose the Claimant takes drugs including suppositories. Her bowel condition is not helped by some of the medication she takes for her pain. That medication promotes constipation. Evacuation is needed between once per day and once every two to three days, depending upon her diet. An attempt has to be made to strike a balance between the relief of pain and the resulting constipation, and Mr Russell states that there is no guarantee that a satisfactory balance will be maintained. The doctors treating the Claimant have considered possible procedures for alleviating the bowel problem. So far as the catheterisation is concerned Mr Russell states that the major complication is the risk of infection. The infection may be confined to the bladder or it may be more serious.

[115]Mr McFarlane also examined the Claimant for the purpose of reporting on her condition and prognosis. He did so on 5th July 2006. In his oral evidence he stated that he would not like to comment on her bowel functions. The reasons for this are set out in some detail in his examination report. In summary he did not feel that sufficient investigations had been carried out in order to form a conclusion, and that there were inconsistencies in the results recorded of such investigations as had been carried out.

[116]Miss Gollop invites me to have regard to the hospital record. On 4th March 2004 there is a report on the Claimant’s attendance at Professor Dorudi’s clinic at the Royal London Hospital for review of her constipation. That letter records her as stating that her constipation started after the operation she had upon her back. It records her stating that since then she opens her bowels about twice a week, whereas previously she used to open her bowels every other day (roughly three times a week).

[117]I have already referred above to the records that the Claimant did not recall, but which recorded her attendance at the same clinic before the operation of 27th September 2001. There is a record of her attending on 15th March 2001 complaining of rectal bleeding, and on 17th May 2001 complaining of haemorrhoids. The documentation subsequent to the operation shows the following. On 18th October 2001, one week after her discharge from hospital Mr Dorudi (as he then was) recorded impaction of faeces in her rectum with classical overflow incontinence. That would explain the need for extra bedding and clothing and cleaning materials for that period, for which a claim is made in the schedule of special damages.

[118]But the incontinence appears to have gone by 14th February 2002, when Mr Dorudi records that she is coping reasonably well with her laxatives but nevertheless only evacuates her rectum once a week, and has to do that with considerable straining which is causing quite distressing prolapse of her haemorrhoids. An enema was prescribed, but on 15th August 2002 it is recorded that, while her symptoms improve immediately after that treatment, a few days later she becomes quite bunged up again. It appears she continued to use enemas through to 2003.

[119]Accordingly it is submitted that the bowel condition which Mr Russell found to exist is an exacerbation of a pre existing condition. In the event it does not seem to me that much depends upon such differences as there may be between the parties on the extent of the bowel dysfunction. I accept that there was significant deterioration as a result of the CES, which would not have occurred if the operation had been performed earlier.

[120]Having reached that conclusion Mr Briden invited my attention to the Guidelines for the assessment of General Damages in Personal Injury Cases 8th edition (2006). Under the heading “Bowels” there is a range of three categories. First is total loss of natural function and dependence on colostomy, for which, depending on age, the guideline is up to £87,500. Next is severe abdominal injury causing impairment of function and often necessitating temporary colostomy (leaving disfiguring scars) and/or restriction on employment and on diet. The guideline for this category is between £26,000 and £40,750. The third category is not relevant on the facts of this case.

[121]Under the heading “Bladder” there is a similar range. The first category is the complete loss of function and control, for which the guideline is up to £81,500. This is followed by a second category of serious impairment of control, with some pain and incontinence, for which the range is £37,150 to £46,300. The editors add a note of warning. They say: “It is perhaps surprising that awards in cases of loss of bladder function have often been higher than awards for injury to the bowel. This is probably because bladder injury is frequently a result from carcinogenic exposure. The reported decisions are seriously out of date and merely increasing them to reflect inflation may be misleading”.

[122]The Guidelines refer to double incontinence and sexual dysfunction under other headings. Under “Back Injuries” there are two such categories, an upper range of £58,500 to £98,500 for severe injury not involving paralysis, but including double incontinence, and a lower bracket including impaired bladder and bowel function and severe sexual difficulties. That heading is not directly relevant to the present case, because although the Claimant has severe back problems, they are not the result of the delay in operating upon her, which is the complaint made in this case. For back injuries without these complications, the suggested range is £16,300 to £22,650. By implication, and process of arithmetic, it would appear to follow that where there is severe back injury short of paralysis, and double incontinence and sexual dysfunction, and where the back injury is not the result of the breach of duty, but the double incontinence and sexual dysfunction are the result of the breach of duty, then the range for the double incontinence and sexual dysfunction might be to the order of £40,000 to £75,000.

[123]There is also a reference to lack of bladder and bowel control and sexual dysfunction under the heading “Injuries to the Pelvis and Hips”. For the highest category under that head the range is £46,300 to £76,350.

[124]Mr Briden does not suggest that one simply adds the figures under each of the headings Bowel and Bladder. What he does suggest is that the appropriate figure, having regard to the guidelines, and including the loss of sexual enjoyment, must be in the order of £80,000.

[125]Miss Gollop submits that the figure should be of the order of £25,000. In support of this she referred to one old authority. But the note of the editors seems to me to be in point here and the decision looks seriously out of date.

[126]In my judgment the two rival figures are respectively too high and too low. If I had to assess general damages I would award £70,000 in this case.

[127]In my judgment the Defendant was not in breach of his duty of care in his management of the Claimant’s illness in September 2001, and so the claim must fail.