“These show an isolated problem at the L4/5 level with involvement of both the disc and the facet joint. There is some irritation of the left L5 root which would account for her more recent symptoms of pins and needles down the left leg.”
“I was pleased to review Lisa today (in my NHS clinic). Unfortunately she continues to be in significant pain. In addition she has developed right posterior thigh pain and numbness in the left calf. The pain also continues to refer into her lower abdomen. She is also complaining of bladder irritability and frequency (there is no saddle anaesthesia nor loss of bladder or bowel control). On examination she has reduced ability to heel raise bilaterally (approximately 50% of the expected range of movement). This is new as [the Claimant’s] previous neurological exam on the 20th of February was normal. [The Claimant] also mentioned that she has lost weight recently, though none of her symptoms pre-date the onset of her LBP [low back pain]. Given the change in her symptoms it would be prudent to undertake further investigations before considering injections or other intervention. I have referred her for a repeat lumbar MRI and also a pelvic MRI. This will take about six weeks. Lisa thought you might have quicker access? If you are able to help with this that would be much appreciated. The alternative is [that] Lisa may fund this privately.”
“Left L4/5 discectomy, Closure: staples”
“Her MRI scan showed an obvious disc prolapse at L4/5 on the left compressing the left L5 nerve root and I recommended surgery to try and help her with left sided leg pain but was not sure that her other symptoms would settle down… Post-operative course: postoperatively [the Claimant] had some relief of her left sided leg symptoms. She was ready for discharge at 48 hours post-operatively.”
“Unfortunately [the Claimant] has not really responded to surgery in the way that I would have expected. Interestingly her pelvic pain has completely disappeared since her L4/5 discectomy. Her left leg pain is if anything worse and she has some pain on the right. Her back pain is about the same... She had no nerve root tension signs with straight leg raising being unlimited to 80 degrees bilaterally… As she is still unable to work I have given her a form to organise a scan at Kingston and she will let me know when the scan has been done and I will let her know my recommendations.”
“Comparison is made with the preoperative MRI scan of3/03/2012 . There is desiccation of the L4/L5 disc with loss of disc height and signal demonstrated. Additional low TI W/intermediate T2 W linear signal within the left lateral L4/L5 recess and surrounding the posterior elements of L4 and L5 vertebrae are consistent with the history of previous surgery and likely due to postoperative scarring There is a tiny area of high signal T2 W involving the far left lateral annulus of the L4/L5 disc together with a residual small disc bulge, The bulging disc is seen to touch but does not displace, the left L5 nerve root and the size of this bulging disc is smaller than on the previous MRI. There is no impingement on the exiting left L4 or L5 nerve roots with the neural exit foramina.”
“…a significant amount of scar tissue along the surgical site and compromise of the nerve root secondary to the scarring”
“… removing the scar tissue can always produce more scar tissue. However a combination of excision of the scar tissue and bony decompression around the nerve so there is plenty of space for the nerve, can produce improvement of the symptoms. I was clear to explain that this is unlikely to be a miraculous cure, but can certainly help the quality of her life. Mrs Thefaut is very keen to undergo any intervention that is likely to help her.”
“Procedure: … there was a substantial amount of thickened scar tissue attached to the lateral aspect of the dura. Some of the fibres of the L5 nerve root were seen to transverse the incision of the disc. There was no evidence of CSF leak…” (Emphasis added)
“I reviewed this very pleasant 48 year old woman who underwent an uneventful left sided re-do L4 hemilaminectomy and excision of scar tissue and nerve root decompression from the left L5 nerve root on1st February 2013. I found a large amount of substantial thickened scar tissue attached to the lateral aspect of the nerve. Some of the fibres of the L5 nerve root were seen to transverse the incision of the disc. However, postoperatively [the Claimant] did not have any substantial improvement of her symptoms. I believe that this results from the long term results of neuropathic pain. Her straight leg raising is 30 degrees on the left and 50 degrees on the right. She has a very mild weakness of the left ankle dorsiflexion graded 4+ MRC. I have explained to her again the results of my surgical exploration.” (Emphasis added)
“On the post contrast sequences there is enhancing soft tissue in the epidural space on the left side with extension around the left side forming L5 nerve root within the subarticular space. This is consistent with fibrosis and is slightly more extensive than on the previous imaging.”
“The following statement is based on this document as well as to my recollection and I believe that the following are accurate and true to the best of my knowledge. Following exposure of the lamina of the spine I started exposing the dura from a normal territory on the side of the L3 lamina. There was a substantial amount of scar tissue attached to the dura. Dissection was performed in a meticulous, diligent fashion under the operating microscope. My aim was to remove as much of the scar tissue as possible and decompress further the nerve root from any bony compression. During microdissection I did identify a number of exposed fibres of the L5 nerve root which are not normally exposed. These are nerve filaments of the nerves normally enclosed within a sheath of dura mater. I did not see any cut nerve filaments. There was no evidence of CSF leak. After further careful dissection some small disc fragments were removed from the disc space and the nerve root was decompressed. Although I am certain that the exposed nerve root filaments was a finding of my operation and was not caused by my dissection, I cannot express any opinion as to the significance of this finding as well as to whether this is linked to the patient’s symptoms.”
“The skeleton Defence raises the following issues [para 26vi] to which you have asked me to respond: (i) ‘There was and is no caudal equina syndrome’. Cauda equina syndrome (CES) refers to the simultaneous compression of multiple lumbosacral nerve roots below the level of the conus medullaris (the conical end of the spinal cord). These nerve roots are derived from the lower most part of the spinal cord – the lumbar and sacral regions. They subserve motor and sensory function to the lower limbs, pelvic and sexual organs and to the perineum. There is no universally accepted definition of CES, but generally speaking it is taken to be the presence of low back pain, unilateral or bilateral sciatica (unilateral or bilateral pain which shoots downwards in the distribution of the sciatic nerve), saddle anaesthesia, motor weakness in the legs leading ultimately to paraplegia, motor weakness of the bladder (impaired ability to empty) with reduced sensation of bladder fullness and rectal and urinary incontinence and loss of sexual function. While the Claimant has some of these symptoms (reduced sensation of bladder fullness, reduced sexual sensation), she does not have any disturbed bladder motor function, by which I mean the ability of her bladder to contract and generate sufficient force to maintain a flow of urine and to achieve good bladder emptying, is not impaired. So, I would not describe her as someone who has sustained a CES and I agree with the Defence in this respect. (ii) ‘The numbness is to the left side of the genitalia region rather than bilateral. This does not sit well with the theory of instrumental damage to S2 and S3’. In my report [para 35] I noted bilateral S2 and S3 sensory disturbance, but worse on the left, which of course was the side of the L5 nerve root compression: ‘Sensation in the buttocks (S2/3 dermatome) to pin-prick was reduced on the left and right side (more so on the left)’. The operation was a left L4/5 discectomy, done for a disc prolapse compressing the left L5 nerve root. It is clearly a matter for the neurosurgical experts to decide how extensive the collateral damage to other nerve roots can be when such surgery is undertaken, but a bilateral injury as I have identified on sensory testing would I think be consistent with an instrumental injury, to both left and right S2 and S3 nerve roots. (iii) ‘It is evident that the Claimant had pre-existing symptoms of irritability and frequency’. I agree that she had a somewhat increased urinary frequency, passing urine 1-2 hourly (3-4 hourly being what she regarded as normal). Now her bladder symptoms are essentially the reverse – a reduced sense of bladder fullness (and her daytime voiding frequency has gone back to a more normal frequency of 3-4 hourly) which is consistent with an injury to the nerves sub-serving the sensation of bladder fullness (S2 and S3), as is her reported symptom of reduced peri-urethral sensation (which she notices upon wiping herself after passing urine) and her reported loss of sexual sensation. Only when her bladder is very full does she suddenly experience a strong urge to void urine. She has diminished vulval, vaginal and clitoral sensation. (iv) ‘He notes that the Claimant is able to pass urine without difficulty, with normal strength and flow and without post void residue…’. My understanding is that motoneurons are more tolerant of compression than smaller sensory nerve fibres, which I think is one explanation for the preserved bladder motor function (hence the normal flow and preserved bladder emptying functions). Furthermore the S4 nerve root which has not been damaged, serves along with S2 and S3 to generate bladder contraction which I think explains why the Claimant has maintained a normal flow rate and good bladder emptying. (v) ‘Mr Reynard's finding is of a diminished sensation is [sic] in the S3 and S4 dermatomes which he relates to some form of damage (he does not say what) to the S2 and S3 nerves that serve those areas. He defers to the neurosurgeons as to whether but for negligent surgery. Such symptoms as she now has in her bladder and perineum would be present’. My findings were of an S2 and S3 sensory deficit. What compelled me to conclude that S2 and S3 nerve roots had been damaged during the operation are the symptoms of S2/3 sensory loss that the Claimant now reports which were not present before the operation, but of which she became aware within days of the operation. My conclusion was therefore and remains that this indicates the S2/3 nerves were injured during the surgery. Such an injury could only have occurred at the time of the surgery. Since I do not perform this type of surgery because I am not a neurosurgeon, it is clearly not appropriate for me to comment on the precise mechanism by which the S2 and S3 nerve roots have been injured. I do know that it is possible to injure nerves in the abdomen and pelvis, for example, by the inappropriate placement of retractors during abdominal and pelvic surgery – while uncommon, such injuries are well described and something of which all abdominal and pelvic surgeons (which includes urological surgeons) are aware. So, in summary the temporal relationship of the onset of symptoms (absent before, present after) to the operation of17 May 2012 , is strong evidence of a causal relationship between the two, in my opinion. (vi) ‘…There is no evidence of severe damage to sacral nerves at the time of the operation. Had there been such damage the Claimant would have gone straight into retention after surgery and needed catheterisation. That did not happen. If however, there was subtle aggravation to a S2 or S3 problem… this is likely to be a non-negligent consequence of competently performed surgery or could simply be part and parcel of the Claimant's neuropathic pain syndrome’. The evidence that S2 and S3 nerve roots have been damaged are the very symptoms of S2/3 sensory loss that the Claimant now reports. Since (a) motor nerves are somewhat larger and more robust than sensory nerve (b) the bladder muscle (the detrusor muscle) receives a bilateral innervation (so it can continue to generate bladder emptying with unilateral sacral nerve injury e.g. in sacral fractures) and (c) the bladder muscle is also innervated by the S4 nerve roots on both sides, it does not surprise me that bladder motor function was preserved in this case. All these points would explain why the Claimant did not develop urinary retention. I hope this answers the questions raised in the Defence skeleton argument.”
“87. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. 88. The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient's health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision. It is unnecessary for the purposes of this case to consider in detail the scope of those exceptions.”
“89. Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”
“90. Secondly, the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.”
“63. The question about whether Mrs A should have been warned about the risk that the low growth on13 May 2009 or3 June 2009 might have been caused by chromosomal abnormality depends on whether there was a ‘material risk’ that B was affected by chromosomal abnormality on either13 May 2009 or3 June 2009 . In this case that means either a reasonable person in Mrs B's position would be likely to attach significance to the risk, or ‘the doctor is or should reasonably be aware that [Mrs B] would be likely to attach significance to it’. 64. The GMC Guidance makes it clear that ‘a small but well-established risk of a serious adverse outcome’ is significant for the purposes of obtaining consent. It is also clear from Montgomery that what is a material risk cannot be reduced to percentages, is fact sensitive and sensitive to the characteristics of the patient. 84. In my judgment the evidence did not show that there was a material risk to which Mrs A should have been alerted that B was suffering from a chromosomal abnormality. If the risk had been at the level indicated by either Dr Taylor and agreed by Dr Reardon (namely somewhere between 1 or 3 per cent), or anywhere approaching that level, then I would have concluded that both Dr Galajdova or Dr Neales should have raised it with Mrs A. However in my judgment the evidence given by Professor Flinter and Dr Howe to the effect that the risk was 1 in 1,000 or, as Dr Galajdova and Dr Neales put it, theoretical, negligible or background, was much to be preferred and I accept that evidence.”
“115. In my judgment, Mr Whitting's third submission is correct and should be upheld. A risk of 1:1,000 is an immaterial risk for the purposes of paragraph 87 of Montgomery. The Supreme Court eschewed characterising the risk in percentage terms, but it was doing so in the context of defining the borderline between materiality and immateriality. Here, I am quite satisfied that the relevant risk was so low that it was below that borderline. I am not to be understood as saying exactly where the threshold should be defined. … 118. In paragraph 84 of his judgment in A v East Kent Hospitals NHS Foundation Trust[2015] EWHC 1038 (QB) , Dingemans J said that a risk of 1:1,000 could be described as ‘theoretical, negligible or background’. Although I would agree with him in concluding that a risk of this order does not in these circumstances have to be discussed with the parents, I would prefer to formulate the matter in the following terms: that the risk was too low to be material.”
“68. In the light of the Montgomery decision already discussed above, I would express the test that I should apply to be the Bolam test with the added gloss that I should pay regard to what the ordinary sensible patient would expect to have been told. Put in the form of a question, the test I consider to be, would the ordinary sensible patient be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it? … 76. I ask myself the question, would the ordinary sensible patient expect to have been given the information contended for; put another way I ask myself, would such a patient feel justifiably aggrieved not to have been given on discharge the information contended if appraised of the significance of such information. I consider that, on the evidence before me, the answer to both questions should be in the affirmative.”
“86. I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately. 87. To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.”
“If I left you on a desert island for a year with 100 other Lisa’s in the same position you would almost all be better when I came back”
“It remains my view that Mrs Thefaut is unlikely to have recovered sufficiently to return to work whether or not he had surgery. Unlike her previous episode this one had persisted and was proving intractable to conservative treatment. As I set out above her prognosis was in my view poor with or without surgery, and her condition and prognosis is likely to have been similar in any event”
“Although neither expert has direct confirmation of this, we believe that targeting of a nerve root which is not protected by a dural sheath, is likely to be a more obvious source of neuropathic pain syndrome”. (ii) Mr Hyam QC launched a sustained attack on the professionalism of Mr Kirkpatrick. This arose because Mr Kirkpatrick had in two recent cases, one in particular involving a claim for negligence against Mr Johnston which ultimately failed, been subject to serious criticism by the Court for his conduct as a professional expert witness: See e.g. Harris v Johnston[2016] EWHC 3193 (QB) per Andrews J. (iii) More or less the full extent of the views on this important issue from Mr Gullan was in the expert’s Joint Statement where he stated: “Mr Gullan has some difficulties with this concept bearing in mind in re-visiting operations, the anatomy can become extremely indistinct”