Court where case issued/heard: High Court of Justice, QBD, Nottingham District Registry
Judge: His Honour Judge Nigel Godsmark QC (sitting as a High Court Judge)
Date of hearing/trial: Trial started 4 January 2016, Judgement handed down 8 January 2016
Claimant solicitors: Barratt Goff & Tomlinson Solicitors, Nottingham
Claimant counsel: Jonathan Hand of Outer Temple Chambers, London
Defendant representatives: NHSLA/BrowneJacobson Solicitors
Defendant counsel: Conrad Hallin of Serjeant’s Inn Chambers, London
Date of negligence: On and after 18 February 2011
Case report prepared by: Emma Zukowska, Partner Barratt Goff & Tomlinson
Brief details of the negligence:
This claim concerns the care provided to the Claimant in relation to the diagnosis and treatment of a spinal epidural abscess at King’s Mill Hospital (“the hospital”) on and after 18 February 2011.
On 10 February 2011 the Claimant attended her GP, complaining of left back pain. On examination she was noted to be tender over the left sacro-iliac area. She was prescribed analgesia.
On 12 February 2011 she attended the Out of Hours GP service reporting severe pain in the left leg for several days, which was now becoming worse and was unbearable. She was advised to attend the Accident and Emergency Department at the Hospital for further investigation.
An X-ray of the lumbar spine was taken which was reported as showing no abnormality save for some loss of lordosis. She was discharged home.
On 14 February 2011 the Claimant saw her GP again. She was now suffering from left sciatica and referred for physiotherapy. On 15 February 2011 the Claimant spoke by telephone to her GP, who noted that she had pyrexia with nausea and retching.
On 16 February 2011 the Claimant was seen at home by her GP, who noted that she had febrile symptoms and that her back pain was no better. On examination, she was noted to be tender in the paravertebral region at L3/4.
On 18 February 2011 (a Friday) the Claimant was taken to the Hospital by ambulance. The Claimant was noted to be in agony with pain in the back and leg, and that she was crying out in pain.
At 20.16 she was seen in the A&E Department at the Hospital for triage. A history of back pain for 10 days with sciatica was noted. The pain was not better, and she had pain in the lower back, sides and abdomen. She had been given Oramorph and Entonox by the ambulance crew and was given further analgesia.
She was seen by a doctor in the A&E Department at 21.35. The history of back pain which had worsened that day was noted. The pain was mainly in the lumbar spine but also in the right renal angle. The pain was now 10/10 and very severe. There was no dysuria but she was “taking ages to urinate”. It was noted that she had “sciatic type pain also described down R[ight] leg”. On examination she was noted to be tender over the lumbar spine and the right renal angle. The impression was “? Renal colic ? UTI ? back pain discitis”. She was catheterised as she had urinary retention and was unable to give a urine sample. She was noted to have a markedly raised CRP, white cell count, and neutrophils.
After discussion with the Specialist Registrar she was to be admitted to the Hospital under the care of the medical team for “? UTI” (urinary tract infection).
On 19 February 2011 at 01.00 she was seen by a doctor on the Acute Medical Unit. On examination the plantar responses were noted to be flexor on the right but possibly extensor on the left. There was midline tenderness at L2/3. An orthopaedic review was advised. The Claimant was prescribed an intravenous antibiotic (Augmentin).
She was seen by an orthopaedic and trauma SHO (clinical note was not timed). The urinary retention and raised inflammatory markers were noted. On examination she was noted to be tender over L3 and L4 on palpation. The plan was to discuss with the orthopaedic Registrar.
At 08.13 she was reviewed before the consultant ward round. It was noted that she had back pain and extensor plantar responses bilaterally but no sensory loss. On 20 February 2011 at 13.20 the Claimant was reviewed by a doctor and it was noted that she had developed leg numbness that day, she felt numb up to the umbilicus and could not move her legs. She complained of thoracic and lumbar pain. On examination she was noted to be tender at T10. An urgent orthopaedic review was requested.
Following orthopaedic review it was decided that the Claimant required an urgent MRI scan in view of her neurology. This could not be carried out at the Hospital at the weekend and so the Claimant was transferred to the Queen’s Medical Centre, Nottingham for imaging.
After transfer to the QMC a whole spine MRI scan was carried out later that day. This showed an extradural abnormality extending from T6 to T11 consistent with infection. On 21 February 2011 the Claimant underwent surgery involving a T6/7 posterior laminectomy and decompression with wash out of the spinal epidural abscess. The epidural abscess found at operation extended from T6 to T12. The Claimant was subsequently transferred to Sheffield Spinal Injures Centre for rehabilitation.
The Claimant’s case was that there was a negligent delay in the diagnosis and treatment of the spinal epidural abscess following her admission to the Hospital on the Friday, 18 February 2011.
With appropriate care, the diagnosis of her condition would have been confirmed following an MRI scan by about 10.30 on the morning of the Saturday, 19 February 2011 at the latest. This in turn would have led to urgent surgery by way of laminectomy and decompression of the thoracic spine with washout of the epidural abscess.
With surgery at this time (together with appropriate antibiotic treatment) she would have avoided any or any significant neurological deficit.
The Claimant suffered a spinal cord injury as a result of which she is left with a T11 ASIA D paraplegia. She is unable to walk and is reliant on a wheelchair. She is unable to transfer independently. She requires hoisting for transfers into and out of a wheelchair. She has impaired bladder and bowel function. She needs care and assistance with all aspects of daily living including personal care. She is at risk of complications related to spinal cord injury throughout the remainder of her lifetime
Additional information (negotiations/offers etc)
The Defendant admitted breach of duty on the basis that the Claimant should have been transferred from the hospital to the QMC by first thing in the morning of the Saturday for scanning, but the case proceeded to Trial on the issue of causation. There was significant dispute between the parties as to the mechanism of the injury and whether, as alleged by the Claimant, this would have been avoided with earlier diagnosis and surgery. Issues also concerned the timing of transfer from the hospital to the QMC, timing of the MRI scan and timing of surgery.
As part of the ongoing litigation process and by order of the court, the parties were required to consider alternative dispute resolution. A Joint Settlement Meeting was arranged for 1 December 2015 but the Defendant later declined this invitation and the meeting was cancelled on 26 November 2015.
The Claimant made a Part 36 Offer on liability at 85:15. This offer expired on the 31 December 2015. Trial was to commence on 4 January 2016. This offer was rejected by the Defendant.
After hearing all of the evidence, His Honour Judge Nigel Godsmark QC found that the Claimant would have been transferred to the QMC by ambulance on the morning of the 19 February 2011, arriving at around 08:45. The MRI scan would have been undertaken by 11:00 that same morning with the Claimant being taken to theatre by 13:30 that afternoon.
HHJ Godsmark QC accepted the findings of the Claimant’s medical expert(s) that there was cord compression together with a venous thrombophlebitis and that earlier surgery would have spared the Claimant and she would have made a full recovery.
Judgment for the Claimant with damages to be assessed.
Part 36 Offer/Indemnity Costs:
HHJ Godsmark QC was advised of the Claimant’s Part 36 Offer and the failure on the part of the Defendant to attend a JSM. As the Claimant had effectively beaten their Part 36 Offer in relation to liability the court awarded indemnity costs from the expiry of the offer – 31 December 2015.
Counsel for the Claimant, Mr Jonathan Hand, submitted that the Claimant should be entitled to further indemnity costs from the date of the cancelled JSM, 1 December 2015, on the basis that the Defendant’s failure to engage in ADR was unreasonable, that a JSM was proportionate and eminently suitable in this case. The Defendant objected to this. Whilst the Defendant had provided a witness statement setting out reasons as to why they did not attend the JSM, the reasons given during submissions differed.
HHJ Godsmark QC found that a party’s decision not to negotiate flies in the face of their obligation absent a good reason for not doing so, and awarded further indemnity costs from 1 December 2015, this being the date of the cancelled JSM.
Payment on account of costs:
The Claimant submitted that a payment on account of costs should be awarded. The Defendant objected to this and proposed that an application be submitted at a later stage. This was a budgeted case and so the Court could be clear as to what costs had been incurred and estimated up to and including Trial. The approved budget in this case, relating to liability costs only was in the region of £175,000 excluding VAT. In view of the finding of indemnity costs HHJ Godsmark QC awarded a payment on account in the sum of £120,000 plus VAT.