Oakes v Neininger & Ors [2008] EWHC 548 (QB)

[2008] EWHC 548 (QB)Case No 5MA90706
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Date 19/03/2008
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil & Family Court
Vernon Street, Liverpool. L2 2BX
Before
THE HONOURABLE MR JUSTICE AKENHEAD
Between
STEPHEN ANDREW OAKESClaimantDR P NEININGERDefendantDR M BROWNDefendantGREATER MANCHESTER AMBULANCE SERVICE (‘GMAS’)Defendant
Mr Joel Donovan (instructed by Stewart Sols) for ClaimantMiss Katie Gollop (instructed by Ryan’s Sols) for 1 st and 2 nd DefendantsMr Gregory Chambers (instructed by Hempsons Sols) for 3 rd DefendantHearing Hearing dates: 3 rd– 6 th March 2008
Judgment
[1]Stephen Oakes, the Claimant, and his wife, Elizabeth, moved house in April 2001 to The Birches, Rigby Lane, Bradshaw, Bolton. He had suffered from back pain for some years as well as an unrelated urinary problem. Following a holiday in Italy, with increasing back pain, he visited his former GP, Dr Neininger (the First Defendant) on 14 July 2001 at about 10.30 to 11 a.m., who considered that he was still suffering from back pain or strain and prescribed anti-inflammatory and pain killer drugs.[2]Following a weekend of further pain, Mr Oakes had a very disturbed night on the 15th July. He got out of bed at about 2 am, and had difficulty in urinating (but did so). Later, Mrs Oakes telephoned the GP out of hours call out service and explained the problem but, being unable to secure a GP to come out, the first ambulance crew was called (“the 1st Call-Out”); they arrived at 4.46 a.m. The crew believed that sciatica could well have been the problem and advised Mr Oakes that calling a GP would be the best course for pain relief purposes. The crew facilitated a GP to visit.[3]Dr Brown (the Fourth Defendant) was the GP who arrived at 6.32 a.m. to visit Mr Oakes. He also considered that there was a sciatica problem and he provided painkiller and tranquiliser drugs. A second ambulance crew was called out (“the 2nd Call-Out”) and arrived at 9.30 a.m. The crew did not recommend that Mr Oakes go to hospital.[4]Mr Oakes fell asleep at about 11.30, doubtless exhausted and with the various drugs making him drowsy. At some stage, he became incontinent between about 11.30 and 2.30. He had a hot bath but was not able to urinate until he later lost bladder control as he made his way downstairs. He lay down on the floor downstairs. By about 4.30 p.m. he started to feel comfortable and felt no pain. Mrs Oakes had earlier gone out to register him at a local medical practice and arranged a home visit by a Dr Benjamin. She arrived at about 6.30 p.m. and, following an examination, formed the view that Mr Oakes had developed neurological symptoms which required urgent specialist attention. She referred him to a specialist (orthopaedic) Senior House Officer at Bolton Hospital who saw him at 9.25 p.m. that evening. He formed the view that Mr Oakes was suffering from “Cauda Equina Syndrome” (“CES”) and recommended an immediate transfer to the nearby Hope Hospital which had a specialist neurosurgical unit.[5]Upon his arrival at Hope Hospital, he was seen by a specialist SHO at 23.40 p.m. who booked him on the emergency morning operation list for the following morning. He was seen by the consultant, Mr Spilsbury at about 9 a.m. on 17 July, had an MRI scan at about 10 a.m., was in the operating theatre by about 11.30 a.m. and out of it by about 1.30 p.m. The operation involved the removal of disc parts from his lower back; this had the effect of decompressing the area. He later had another operation on 21 July 2001[6]Mr Oakes was hospitalised for some five weeks. He has been left with a seriously impaired bladder and bowel function, a significant loss of sexual function, an impaired walking function and poor balance. Cauda Equina Syndrome[7]The Latin term means “horse’s tail” and describes a large bundle of nerves. CES has been described as: “…a collection of signs and symptoms resulting from compression of the bundle of nerve roots emerging from the end of the spinal cord below the 1st lumbar vertebra. The classic syndrome is characterised by severe LBP [lower back pain] with bilateral sciatica associated with saddle anaesthesia, urinary retention and bowel dysfunction.” (MPS Casebook-2003-“Cauda Equina Syndrome” by Anthony) One of the causes of CES is a herniated intervertebral disc.[8]In an authoritative review in the British Journal of Neurosurgery in 2002 addressing the relationship in CES cases between timing of surgery and outcome, Gleave and MacFarlane said this:
“Kostuik, in a review article, defined [CES] as a complex of symptoms and signs consisting of lower back pain, unilateral or bilateral sciatica, motor weakness of the lower extremities, sensory disturbance in the saddle area, and loss of visceral function. Implicit in the diagnosis of this syndrome is bowel and urinary dysfunction. However, if meaningful analysis of the role of emergency decompression is to be evaluated, we believe that it is necessary to distinguish between two subgroups of cases. A patient with urinary difficulties of neurogenic origin, including altered urinary sensation, loss of desire to void, poor urinary stream and the need to strain in order to micturate (incomplete cauda equina syndrome –CESI), must be evaluated separately from one with painless urinary retention and overflow incontinence, where the bladder is no longer under executive control (cauda equina syndrome with retention-CESR).”
[9]There is some lack of clarity and effective research as to the extent to which, after a patient has reached the stage of CESR, early surgery to decompress the lesion will or may avoid or reduce the permanent consequences of the condition. There is no doubt that, if surgery can be effected at the CESI stage and before the CESR stage, there will or should be a good recovery from most of the symptoms, although there is doubt as to whether full sexual function will be recovered. The experts in this case accept that proposition. The issues in the case[10]A number of parties originally joined as defendants in these proceedings are no longer parties. Essentially there are three defendants left in these proceedings:a. A. Dr Neininger: following on from the GP experts’ agreement, he is only in breach of duty if he was made aware by Mr Oakes on 14 November 2001 of pains in both his legs. It is accepted that, if he was told, he should have advised Mr Oakes about the potential symptoms of CES and of the need for him to take very prompt action if the CESI-type symptoms occurred.b. B. Dr Brown: breach of duty is admitted by him that he should have secured that Mr Oakes was taken to hospital with suspected CESI.c. C. Greater Manchester Ambulance Service NHS Trust (“GMAS”): the two ambulance crews need to be considered separately:(i) 1st Call-Out crew: there remains in issue whether this crew was in breach of duty. However, it is accepted by both Accident and Emergency experts that, if the only symptoms described by Mr or Mrs Oakes to the crew were serious back and leg pain, there was no breach of duty. It is only if other symptoms such as numbness and pins and needles were described to them, that Mr Kayani, Mr Oakes’ expert, says that there was a breach of duty by the crew in failing to insist that Mr Oakes be taken to hospital; that, however, is disputed.(ii) 2nd Call-Out crew: liability is admitted on its behalf on the basis that they should have required Mr Oakes to be taken to hospital.[11]Causation is in issue, save that Dr Brown and GMAS in respect of the 2nd Call-Out crew accept that damages are payable for the extra pain and suffering incurred by Mr Oakes as the result of the delay in him getting to hospital. The causation issues revolve around:(a) when Mr Oakes became CESR;(b) whether in practice Mr Oakes would have been in the operating theatre assuming no breaches of duty in sufficient time before the onset of CESR;(c) even if Mr Oakes would have been in CESR in any event, whether any of the conditions, which he suffered from, would have been avoided or reduced if the operation had been performed earlier than it was. As can be understood, the causation issues turn on timings and whether as a probability Mr Oakes would have been operated on sufficiently early to avoid or reduce the conditions which he now suffers from. The law[12]The law so far as liability or breach of duty is well established so far as professionals are concerned. The well known authority of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 is often referred to: “I myself would prefer to put it this way, that he [a medical professional in that case] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a respectable body of medical men skilled in that particular art…putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” (Page 587-per McNair J)[13]There can be no issue that the Claimant has the burden of proving that the breach of a duty of care in tort caused the injury or condition suffered (see Bolitho v City and Hackney Health Authority [1998] AC 232, 239F, approving Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Wilsher v Essex Area Health Authority [1998] AC 1074[14]In the Bolitho case, their Lordships had to consider issues of causation in the context of an arguably culpable omission, where “the question is what would have happened if an event which by definition did not occur had occurred”. In the current case, it may be necessary to consider what would have happened if Drs Brown and Neininger and the two ambulance crews had given the advice which it is said or accepted they should have done. Although the House went on to consider on the facts of that case what would or might have happened, I do not think that it was laying down precise formulations of how that hypothetical question has to be answered.[15]Some guidance is given in these hypothetical circumstances as to how courts should proceed, in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104.

Lord Justice Otten said:

“Here the plaintiff does not seek to prove the loss of a chance; his case is that because of the delay he is worse off, or, had it not been for the delay, he would have been better off. It is not sufficient to show that delay materially increases the risk or that delay can cause injury. The plaintiff has to go further and prove that damage was actually caused, that is, that the delay caused injury. In my judgment, it is not sufficient to show a general increment from the delay. He must go further and prove some measurable damage.”
This case is particularly apt and I will have it in mind when addressing the facts. The witnesses[16]I formed the view that all the witnesses, both factual and expert, were honest and did their best to assist the court.[17]I was impressed with the honest and open way in which both Mr and Mrs Oakes gave their evidence. I did not on any occasion feel that they were trying to mislead or exaggerate. I do allow for the fact that between the 14th and the 17th July Mr Oakes was in serious pain and discomfort and at least throughout Monday was tired. That period was also a disturbing and harassing time for Mrs Oakes who clearly did all in her power to assist her husband.[18]As for Dr Neininger, he frankly, but unsurprisingly, accepted that he could not remember the consultation of the 14th July but relied upon his notes of the consultation and his usual practice of noting down salient features of what he saw and was told. Although he gave his evidence in a straightforward way, I sensed that he was not wholly confident about whether his notes were complete.[19]As for the 1st Call-Out crew, Mr Crompton and Mr Evans, they were straight forward and answered all questions directly. The 2nd call-out crew was not called.[20]I will address the experts and their evidence in the remainder of the judgment. LIABILITY The 14th July 2001[21]The only issue which I have to decide, given the GP experts’ agreement, is whether Dr Neininger was told by Mr Oakes about pains in both legs. I am in no doubt, and find at least on a balance of probabilities, that Mr Oakes did tell him. I make this finding for the following reasons;(a) Mr Oakes said so in evidence and, given the good impression which I had of him as a witness, I believe him.(b) He said that, at least for the period of his and his wife’s holiday to Italy, he had been in great discomfort; indeed his holiday had been ruined by his back problems.(c) They must have returned from their holiday before the 14th July, probably the day before, because I am sure that he would have remembered if he had just come from the airport.(d) Mr Oakes described in a convincing manner how he had to be helped out of the car by his wife and shuffled, from side to side, from his car in to the surgery and then into Dr Neininger’s room. That is consistent with pain in two legs(e) He said that he told Dr Neininger about the pain in both of his legs.(f) There was an issue raised in cross-examination as to when the pain to the right leg started. It is not wholly necessary to resolve this as the key matter is whether there was pain in both legs reported to Dr Neininger. If I had to decide this, I would find that the pain in the right leg as well as the left legs had been present for some weeks beforehand; that is corroborated by Mr Oakes’ first witness statement in Paragraphs 6 and 8.(g) Dr Neininger’s notes were brief: “”Low back pain after DIY L femoral pain SLR [straight leg raise] Rt 60º Lt 45º” L femoral pain SLR [straight leg raise] Rt 60º Lt 45º” There then follows the prescription. He accepted in evidence that, if he did not ask about both legs, his note would be silent. He accepted that it was possible that he was inattentive as to what the patient was saying and that his note could have been fuller; he tended to write very brief notes and he candidly accepted that this was a possible fault of his.(h) As indicated above, I preferred the evidence of Mr Oakes to that of Dr Neininger. I infer that Dr Neininger, having been told about the pain in both legs but appreciating that the pain was worse in the left leg (the straight leg raise being worse for the left leg), overlooked the possible implications of there being pain in both legs and simply recorded left leg pain.(i) There is some contemporaneous corroboration for Mr Oakes’ recollection which is the version of vents which Mr Oakes gave Dr Canty, the orthopaedic SHO, who saw Mr Oakes on the evening of the 16th July 2001 at Bolton Hospital; he noted that Mr Oakes said then that he had had “Bilateral leg symptoms” “3 days ago”. This would fit in with Mr Oakes having pains in both legs on the 14th July 2001.

L femoral pain

[22]The GP experts, who did not have to be called, say in answer to Question 2 of their joint statement of December 2007:
“In 2001 if a patient had consulted with back pain and unilateral signs and/or symptoms it would not have been mandatory for a competent GP to advise and warn about the potential symptoms of CES and the need to take very prompt action. If there were already symptoms and/or signs bilaterally in the legs such advice and warnings were mandatory”
(emphasis added)[23]I conclude that breach of duty on the part of Dr Neininger is established. I will return to causation later. The 1st Call-Out crew[24]Upon analysis, there is only one issue in the context of the 1st Call-Out crew which is whether Mr or Mrs Oakes told the crew that he had experienced numbness or pins and needles. If that happened, there was evidence from Mr Kayani that ordinarily competent crews should have taken him into hospital. But for that factor, the experts agree that the crew were not in breach of duty in doing what they did in calling for a GP to attend.[25]There was no written witness statement or oral evidence from either Mr or Mrs Oakes as regards the 1st Call-Out crew that he had or had told them that he had experienced numbness or pins and needles. Neither member of the crew could recall whether they were told about the numbness or pins and needles. Indeed, Mr Crompton, honestly, changed his written statement which indicated that this had not happened to that effect. There was no application to recall either Mr or Mrs Oakes to address this issue.[26]Ultimately, I was asked by Mr Donovan for Mr Oakes to infer that the crew was told about the problems. This was primarily on the basis, that as Mr Oakes had had the problem earlier in the morning and (as supported by a transcript of the relevant conversation) Mrs Oakes had expressly told the GP call-out service about the numbness and pins and needles problems at about 3.30 a.m., one or other of them is likely to have told the crew about these problems.[27]I am not in a position to accept that this should be inferred. My reasons are as follows:(a) One should generally not infer something which the key witnesses have not been asked to address. I would have expected both Mr and Mrs Oakes to have been asked whether they did tell the 1st Call-Out crew about the numbness and pins and needles; even if they could not recall as such, they would have been able to assist as to the likelihood as to whether they would have told the crew about these conditions. With their answers, one could then well infer or not, but at least on an informed basis.(b) Mr Oakes did assert, I accept correctly and honestly, that he did not inform the crew about his difficulty in urinating which he had had earlier in the morning. He said that the reason he did not say anything about it was that he had been able to go to the toilet. It is by inference at least equally possible that the reason he may not have mentioned the pins and needles or the numbness was that he did not feel those sensations at the time when the 1st Call-Out crew was there.(c) It is not for the Court to enter the arena and start upon an inquisitorial role when, as here, competent Counsel and Solicitors are involved on all sides.(d) Any inference must arise as a matter of logic and probability and should only arise when it there is no other equally or more rational inference to draw. Here, it is equally and possibly more likely that Mr or Mrs Oakes did not mention the numbness or the pins and needles because he was not suffering from those sensations when the crew attended or that they did not think them sufficiently relevant to mention.[28]It follows from the above that the case against the 1st Call-Out crew for breach of duty is not made out. Dr Brown and the 2nd Call-Out crew[29]Breach of duty is admitted in respect of Dr Brown and the 2nd Call-Out crew. Essentially, their breach resulted in Mr Oakes not being taken to Bolton Hospital as soon as was practicable. CAUSATION[30]The major issues on causation revolve around(a) when Mr Oakes reached the stage of CESR and thus arguably beyond the stage when surgery would have improved his symptoms, and(b) when Mr Oakes would, as a matter of probability, have been operated on at Hope Hospital if there had been no breach of duty on the part of Dr Neininger, Dr Brown and the 2nd Call-Out Crew. This latter issue involves a factual consideration of the likely timings.[31]When was CESR reached There was a disagreement between the experts as to when CESR in general is reached. The leading paper, set out at Paragraph 8 above, defines the two stages as follows:
“A patient with urinary difficulties of neurogenic origin, including altered urinary sensation, loss of desire to void, poor urinary stream and the need to strain in order to micturate (incomplete cauda equina syndrome –CESI), must be evaluated separately from one with painless urinary retention and overflow incontinence, where the bladder is no longer under executive control”
Mr Morley (Spinal Surgeon) and Mr Lemberger (Urologist) for the GPs and Ambulance crews respectively are of the view that once there is loss of bladder control CESR has occurred. Mr Sett says that the authoritative paper indicates that in addition to loss of bladder control there must be painlessness in the urinary retention.[32]I prefer the evidence of Mr Sett on this topic. It accords more with logic and recognises a factor, that of painlessness, which the authoritative paper of Gleave and MacFarlane acknowledges is a factor which should be present when CESR is reached. I can understand why Mr Morley and Mr Lemberger say what they do but it ignores what the authors actually say. If there is painful urinary retention, that must be because the nerves, at least those which register pain, are still operating. That in turn suggests that the syndrome is not complete and that surgery to relieve the pressure on the horse’s tail of nerves being compressed by the affected disc has a realistic chance of improving matters.[33]Extensive criticism of Mr Sett was made particularly by Ms Gollop, Counsel for Drs Brown and Neininger, in her closing submissions. I considered them unjustified. For instance, he records in his reports that he was told that Mr Oakes had broken his back and that Mr Oakes returned from Italy on the day that he visited Dr Neininger. He recorded what his notes recorded probably in shorthand and he may wholly understandably have misunderstood what either he had been told or what his notes recorded. It is said that his report addresses criticisms about parties other than those currently being proceeded against; however, his reports were drafted at times when other parties were still in the litigation. It is complained that he has changed his views in one or two instances; that seems to me in his case to be more of a merit: experts who are prepared to change and moderate their views particularly after discussions with the other experts are behaving properly.[34]As to when Mr Oakes first lost control of his bladder, I prefer his own evidence that it was only when he woke up that he discovered that he had wet himself. True it is that the Particulars of Claim (served initially in May 2004) assert at Paragraph 14 that “at or about 11.30 a.m. {he] suffered loss of control of his bladder” and Mr Sett records in his Causation report of 4 April 2006 (at Page 11) that there was the first “complete loss of bladder control on the morning of the 16th July”. I would be most surprised if Mr Oakes, who I found to be an impressive witness, did not remember whether he lost bladder control before he went to sleep. It is more likely than not that it occurred when he was asleep between 11.30 a.m. and 2.30 pm. Therefore, on a balance of probabilities, the loss of bladder control first occurred at the mid point of his sleep, namely about 1 p.m.[35]I am satisfied that in all probability Mr Oakes went into the state of painlessness at the time when he said he did, which is about 4.30 p.m. He said in his first statement that about that time he started to feel comfortable, the pain had gone and he started to feel no pain at all. He described that earlier he felt that his bladder was extremely full and that after his bath after 2.30 p.m. he did not “get any real relief”. I conclude that he felt pain from his bladder before 4.30 p.m. but after the loss of bladder control. It was suggested by Mr Morley that all he probably felt from the bladder department was the nerve sensations from the abdomen muscles or similar which had not been affected by the collapsing disc. I prefer Mr Oakes’ own factual evidence on this, supported as it was by Mr Sett, rather than Mr Morley’s assumptions.[36]The next issue is, given that the conclusion which I must draw from my findings above is that Mr Oakes experienced CESR at about 4.30 p.m. on the 16th July 2001, whether he would have been operated upon in time before CESR came on. I need to consider the impact on the timings separately in relation to the three parties who have either admitted liability or been found liable. There is a lacuna in the pleadings because the causation case is pleaded against the First, Second and Third Defendants, whilst Dr Brown is the Fourth Defendant and the Ambulance service is the 5th Defendant. However, these Defendants have bee treated as the Second and Third Defendants and no pleading point is taken. Causation-Dr Neininger[37]In effect the GP experts agreed that Dr Neininger should have warned Mr Oakes that if he developed sphincter disturbance, saddle anaesthesia, loss of power to his legs, new or additional urinary symptoms or deteriorating bladder control, he should either contact a GP or take himself to A&E immediately. Mr Oakes said that if he had been so warned he would have insisted that the 1st Call-Out crew took him directly to hospital. That was not challenged seriously or at all; I accept his evidence and so find.[38]On a balance of probabilities, what then would have happened is as follows: `(a) He would have been in the Ambulance by about 5.30 a.m.(b) He would have been in Bolton Hospital A & E by no later than 6 a.m. More likely, it would have been some ten minutes before, reflecting the time taken by the ambulance crew that evening(c) He would have been reviewed by a triage nurse and doctor by no later than about 6.30 p.m. who would have appreciated that there was possible CES and roused the orthopaedic SHO.(d) The orthopaedic SHO would have seen Mr Oakes by about 7 a.m. and diagnosed CESI and initiated a transfer of him to the specialist neurological and spinal unit at Hope Hospital.(e) He would have been in Hope Hospital and assessed initially by a specialist SHO by about 9 a.m. He would have been booked on the emergency operation list that morning and blood tests done. He would have been seen shortly thereafter by the surgeon, probably Mr Spilsbury.(f) He would have had an MRI Scan by about 10 a.m. and into the operating theatre by no later than about 11 a.m.(g) He would have been operated upon over, and the operation completed within, the next two hours. Thus, on the balance of probabilities, Mr Oakes would never have got to the stage of CESR if Dr Neininger had not been in breach of duty.[39]I have based these findings (set out in the preceding paragraph) on the following: (a) All the relevant experts said that their clinical instincts were that CES patients need to be operated on urgently. That is supported by the Gleave & MacFarlane paper which says in its Conclusion:
“…urgent surgery remains indicated for patients with an incomplete lesion [CESI] to prevent them from progressing to complete cauda equine syndrome…”
This is wholly logical as there is a good chance of avoiding the (at least) generally irreversible consequences of CESR. Even when Mr Spilsbury must have known that CESR had set in on 17 July, he moved very fast. (b) The timings are supported by the evidence of Mr Kayani whose evidence was largely unchallenged on this topic and whose evidence on this aspect of the case was convincing. (c) The ambulance time is consistent with what happened in fact when Mr Oakes was eventually taken to Bolton Hospital. It actually took 14-15 minutes to get to the hospital from the Oakes’ house. The actual trip from Bolton to Hope took 18 minutes. (d) The time between arrival at Bolton and Mr Oakes being seen by Dr Canty, the orthopaedic SHO, was some 17 minutes. Although he had been forewarned and the patient was taken to him by the ambulance crew, my allowance of an hour assumes more time because in the case of the Dr Neininger breach causation, the orthopaedic SHO would not have been forewarned. (e) The time between Mr Oakes being seen by the orthopaedic SHO at Bolton and getting to Hope reflects largely the time actually taken on the evening of the 16th July in fact when it took 2 hours and 15 minutes from the start of Dr Canty’s examination of Mr Oakes to the start of his examination by the specialist SHO at Hope Hospital. I have reduced the actual time by 15 minutes to reflect the fact that the orthopaedic SHO at Bolton would probably have appreciated that the patient was at the CESI stage and it would have been considered even more urgent that he be received at Hope earlier rather than later. (f) I have taken the immediacy of being seen by the specialist SHO at Hope and the placing of Mr Oakes on the emergency list from what happened in fact. There would have been greater urgency as soon as it was realised that the patient was only at the CESI stage. (g) It is a reasonable inference that Mr Spilsbury or equivalent would have seen and needed to see Mr Oakes promptly and that he would have required a prompt scan. I have taken the timings for the scan from what actually happened. (h) I have allowed for somewhat less time for the operation to start than actually occurred to reflect what Mr Spilsbury would have been aware of, namely that he had a patient with CESI and the quicker the operation started the better were the chances of a substantial recovery; to delay would give rise to an ever increasing risk that CESR would arrive.[40]There was considerable debate between the experts as to what would be the minimum time in which the patient would or could have been operated on. They agreed that “surgery could be performed within 6-8 hours after admission” but disagreed as to whether that meant admission at Bolton or Hope Hospitals. Mr Sett said admission at Bolton whilst Mr Morley and Limberger said admission at Hope. I preferred Mr Sett’s evidence on this issue. However, my timescale is some 5 hours from admission at Bolton as that reflects the actual history and Mr Kayani’s evidence. All the experts were emphatic that Mr Oakes’ case needed to be treated as an emergency particularly as he would have been in CESI and early surgery had a good chance of avoiding serious permanent problems for the patient. It is inconceivable that in these circumstances Hope, and Bolton, would not have done all they could to get this man with CESI on to the operating table within a lesser time than actually happened after CESR had set in.[41]It follows that I am satisfied upon a balance of probabilities that Dr Neininger’s breach of duty caused the conditions which Mr Oakes suffers from (see the section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified above, whilst he was still at the CESI stage. Dr Brown-Causation[42]A similar timescale would apply in the case of Dr Brown except that he only arrived at The Birches at 6.32 a.m. on the morning of 16 July 2001. He left by 6.42 a.m. He should and would have called an ambulance by 6.45 a.m. and, in the same way as Dr Benjamin did later that evening, have referred him to a specialist (orthopaedic) Senior House Officer at Bolton Hospital. On a balance of probabilities, the ambulance would have arrived at no later than 7.05 a.m. I have taken 20 minutes to reflect the times taken by the first two ambulance crews to arrive after being called.[43]Mr Oakes would have been in Bolton Hospital being examined by the orthopaedic SHO by about 7.30 a.m. The same timescale would then apply as in the case of the Dr Neininger- Causation scenario set out above. Thus, he would have been in the operating theatre by about 11.30 a.m and the operation completed about two hours later.[44]I therefore find that upon a balance of probabilities that Dr Brown’s breach of duty caused the conditions which Mr Oakes suffers from (see the section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified earlier in this judgment, whilst he was still at the CESI stage.

` 2nd Call-Out crew-Causation

[45]Similar considerations apply in the case of the 2nd Call-Out crew. It arrived at the Birches at 9.41 a.m. Although in fact they left at 10.18 a.m, in my judgment they should have had Mr Oakes in the ambulance by 10 a.m. and been at Bolton A & E by 10.20 a.m. This reflects the time taken by the crew who got Mr Oakes to hospital that evening.[46]The same timescale applies to that applicable in the Dr Neininger-Causation scenario above. Thus, on that basis, Mr Oakes would have been in the operating theatre by no more than about 5 hours later, that is, by 3.30 p.m. In all probability, that stage would have been somewhat earlier than that to reflect(a) a twenty minute ambulance journey to Bolton Hospital,(b) the fact that the Orthopaedic SHO at Bolton would not have had to be roused at that time of the morning, and(c) there would have been a recognition by Hope Hospital that they had a patient who had been exhibiting CESI symptoms for some 8-10 hours or more and it was becoming increasingly urgent to operate. On balance, I find that he would probably have been being operated upon by 3.00 p.m.[47]Therefore, since CESI in fact did not occur until about 4.30 p.m., I find on the balance of probabilities that the breach of duty on the part of the 2nd Call-Out crew caused the conditions which Mr Oakes suffers from (see the Section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified above, whilst he was still at the CESI stage. Miscellaneous Causation matters[48]There was extensive debate in the expert evidence and in the argument as to whether, if CESR had set in before the time when the operation would have been performed, the breaches of duty still caused vital time to be lost so that the operation eventually done by Mr Spilsbury on Mr Oakes on 17 July between about 11.30 a.m. and 1.30 p.m. was done later than it would have been done if there had been no negligence. The debate extended to considering whether there would have been any (more than insignificant) improvement in Mr Oakes’ conditions if he had been operated upon earlier in his CESR state.[49]It is not necessary for me to decide this issue given my findings above. However, I have formed the view that the benefits of earlier rather than later operation of patients in the CESR stage were not established on a balance of probabilities. Although all the experts who gave oral evidence were of the view that their overwhelming instinct was that one should operate earlier rather than sooner, there is little reliable evidence that there is a physiological or neurological benefit. Greave & MacFarlane say:
“…examination of the literature does not support a role for emergency surgery to treat a condition which is complete at the time of presentation to hospital. In such cases, the critical period has already passed and it is too late to recover the situation by emergency decompression of the cauda equine. In this situation, surgical delays do not affect final outcome.”
The authors had referred to various papers which had suggested otherwise. Indeed, the Claimant’s experts and Counsel pointed to various papers which suggested otherwise.[50]I am not satisfied upon a balance of probabilities that surgery up to 12 hours after a patient went into CESR would provide a measurable improvement. Certainly various papers do suggest that some patients do have some improvement with earlier surgery. However, at most, in the context of this case, earlier post CESR surgery gave Mr Oakes a chance of some improvement. As the case of Tahir v Haringey Health Authority lays down, that is not enough. I can not find on a balance of probabilities that an earlier operation after CESR set in would probably have resulted in a discernible, significant or relevant improvement. Injuries and Medical Consequences[51]The experts are agreed, and I find, that, if surgery had been carried out whilst CESI was present, a full recovery would have taken place with regard to bladder and bowel function, mobility and gait and neuropathic pain with the exception that there would still have been chronic back pain. The sexual function would probably not have been recovered at least to a normal state but it would have probably have been better than it became.[52]Thus, the injuries and conditions, which Mr Oakes has suffered or been left with as the result of the breaches of duty which I have found, are those which would have been avoided if he had been operated upon whilst still in the CESI state:(a) the need to self catheterise to empty the bladder;(b) the lack of spontaneous bowel activity with the need manually to evacuate the bowel;(c) flat footed awkward gait;(d) pain in his feet;(e) weakness of plantar flexion of the feet and of knee flexors and hip extensors;(f) loss of all meaningful sensation in the sexual function. In addition, he suffered pain and discomfort for the period from when he should first have been operated upon and when he was operated upon.[53]Although Counsel have urged me to address the injuries and medical consequences in as much detail as possible, I was not assisted much by the oral or written openings or closings. Mr Morley and Mr Lemberger do not opine in their reports to any significant extent as to what the consequences of operating before CESI were or would have been. The Joint Statements do assist to some extent but they address the matters in generalities which, whilst helpful, do not condescend to much detail. Mr Sett does address the causation in more detail and where I have gone further than the Joint Statements I have accepted Mr Sett’s observations as probably correct, unchallenged as they were. I have done the best that I can upon the available information.[54]So far as sexual function is concerned, my findings reflects the fact that the experts agreed at Answer 9(iv) of the “Defendants’ Agenda” part of the Joint Statement that, amongst others, the sexual function would be “fully recovered”. They agreed, perhaps confusingly in Paragraph 8 (iv) of the “Claimant’s Agenda” that sexual function would be “unlikely to return to normal”. There was some acceptance by Mr Sett that, as the relevant nerves for the sexual function are sensitive and once affected by pressure, there is much more potential for those nerves to remain affected; he said in evidence that, if the operation had been done at 2 to 3 p.m. on the afternoon of 16 July 2001 or by inference later, sexual function would not return. I infer however that it would have been, not insignificantly, better if the operation had taken place before then, as would apply in the case of the doctors’ causation scenarios, albeit not in the case of the 2nd Call-Cut crew. I am not unfortunately in a position to say at this stage precisely what extent of sexual function would have been saved or preserved if the operation had been carried out in the morning of the 16 July 2001. That will have to be addressed at a later stage. Conclusion[55]I conclude and find that Drs Neininger and Brown and GMAS are liable in negligence to Mr Oakes with the result that he was prevented from having earlier surgery whilst still at the stage of CESI. Consequently, he was denied the substantial recovery which would have followed such earlier surgery as described above.

Cited in 2 later judgments