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Cite as: [2011] EWHC 2914 (QB)

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		Neutral Citation Number: [2011] EWHC 2914 (QB)
		Case No: 9BD05717

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRADFORD DISTRICT REGISTRY

Leeds Combined Court
The Court House, 1 Oxford Row, LS1 3BG

10th November 2011

B e f o r e :

MR JUSTICE COULSON
____________________

Between:

	Nasir Hussain	Claimant
	- and -
	(1) Bradford Teaching Hospital NHS Foundation Trust (2) Doctor Keith Jepson	Defendants

____________________

Mr Timothy Hartley (instructed by Morrish Solicitors) for the Claimant
Mr Charles Feeny (instructed by Hempsons) for the Defendants
Hearing dates: 31st October, 1st, 2nd & 3rd November 2011
____________________

HTML VERSION OF HANDED DOWN JUDGMENT
____________________

The Honourable Mr Justice Coulson:

1. INTRODUCTION

Cauda Equina Syndrome ("CES") is a relatively rare condition caused by a disc prolapse. The disc bulges and puts pressure on the nerves at the end of the spinal cord. The disc gets bigger and moves into the centre of the spinal canal. CES is classically 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 first lumbar vertebra. It is typically characterised by severe lower back pain with bilateral sciatica, associated with saddle anaesthesia, urinary retention and bowel dysfunction'. There was a dispute, which I consider to be largely academic, as to whether the definition should also include a reference to the loss of executive control of the bladder. When the condition is developing, it is called CESI; when it is complete, it is called Cauda Equina Syndrome with retention, or CESR. As this case makes plain, its effects can be devastating.

There is an important issue in the present case concerning the degree of potential reversibility once CESR has been developed, dealt with in some detail below (see paragraphs 59 to 93 inclusive). In general terms, however, it can be said that, once CESR has been reached, a full recovery is less likely than it would have been if surgery had been carried out at the CESI stage. This is important because, here, the Claimant developed CES in the early hours of 28 August 2006, yet reached CESR no later than noon on the same day, and probably as early as 7 am. Despite a subsequent MRI scan and emergency surgery, late on 30^th August, it did not prove possible to improve the Claimant's condition. He now has a complete loss of sensation below the waist and has to wear an indwelling urinary catheter. He has bowel problems and has been rendered sexually impotent. What makes the Claimant's case so troubling is that he developed CES, and reached CESR, at a time when he was a patient in the Bradford Royal Infirmary, under the First Defendant's care.

The Claimant brings two different claims. The claim against the First Defendant is based on his treatment and care from the evening of 27 August onwards. His claim against the Second Defendant deals with the position in June 2006 when, so it is said, the Second Defendant failed to provide a proper diagnosis and failed to recommend an MRI scan. This Judgment deals with the issues of liability and causation arising from those separate claims. In Section 2 below, I deal briefly with the background to the Claimant's claims. In Section 3, I deal with the factual matters arising out of the Second Defendant's involvement in June 2006, and in Section 4, I deal with the issues of liability and causation concerning the Second Defendant. Thereafter, at Section 5, I deal with the relevant facts during the period of 27-30 August 2006. At Section 6, I deal with the liability issues arising against the First Defendant in respect of that period and, at Section 7 I deal with the concomitant causation issues. There is a short summary of my conclusions at Section 8.

2. BACKGROUND

The Claimant is now 56. He has had a degenerative disease in the lumber spine for many years. In 1981 he had a lumbar laminectomy and discetomy. Thereafter he had episodic low back pains, sometimes radiating to the back of the left thigh and had occasional periods off work as a result. It appears that, generally, he treated those episodes with bed rest and pain killers.

Early in 2005, the Claimant began to experience pains in both legs. By June, his condition seriously deteriorated with very acute low back pain. An acute right drop foot developed with numbness in the right lower leg and foot. His right leg sometimes gave way. His GP, Dr Das, referred him to the Second Defendant, a consultant orthopaedic surgeon. The Second Defendant examined him on 26 May 2005, an examination which the Claimant confirmed was "thorough".

Although there was some debate at trial as to precisely what happened on this occasion, I find that there is a clear record contained in the Second Defendant's letter to Dr Das of 26 May 2005, written on the day of his examination of the claimant. The Second Defendant noted the following:

"On examination – He is obviously in very severe pain. He came in a wheelchair from his car. He clearly has marked weakness in the right leg when standing as the right leg gives way.

Examination of his back reveals the well healed laminectomy scar but otherwise the back looks normal although he does tend to lean forward for balance perhaps although there may be a loss of lumbar lordosis.

More worryingly there seems to be a sensory level on the right at about D5 below which sensation to touch is abnormal whereas it is certainly normal above that level…There is a complete right drop foot with no dorsi-flexion, inversion or eversion although plantar flexion is normal…

Opinion – This man certainly has a serious problem in the spine. It may be in the dorsal spine and urgent MRI Scans are indicated. I shall therefore be admitting him to Bradford Royal Infirmary tomorrow for MRI Scan of dorsal and lumbar spines."

It appears that the Second Defendant discontinued working as a surgeon at Bradford Royal Infirmary shortly thereafter, and the Claimant was referred to the neurosurgeons in Leeds. It appears that an operation was carried out there later in 2005 which was generally regarded as successful.

3. THE SECOND DEFENDANT'S ROLE IN JUNE 2006: THE FACTS

On 19 June 2006, the Claimant saw the Second Defendant again. It appears that, although the Claimant said that his leg pains had never completely settled following the surgery, he was able to deal with any subsequent discomfort with painkillers. Then, earlier in the year, sudden low back pain developed again. The Second Defendant's letter to Dr Coley, the Claimant's new GP, dated 19 June 2006, contains the following summary:

"He tells me that the low back pain radiates particularly into the front of the left thigh and to the left calf but no further. He tells me that the right leg feels weak but there is no right leg pain. There is no loss of sensation. Micturition is unaffected. He tells me that he has some bleeding per rectum when defecating which he thinks is due to constipation caused by pain killers.

ON EXAMINATION

The lumbar spine wound remains well healed. Straight leg raising today is right 75, left 45. There is no motor or sensory deficit in the legs apart from an absent left ankle jerk (the knee jerks and the right ankle jerk are normal). There is no ankle clonus.

OPINION

This gentleman is not privately insured and I am afraid that I am not able to offer any direct help. However, I am sure that further surgery should not be considered and he agrees with this. Even so an accurate diagnosis needs to be made and I am sure that the best person for him to see is Dr Gupta in the Pain Clinic…"

There was a debate as to whether, during this appointment, the Second Defendant actually carried out a physical examination of the Claimant. I conclude that he did; the part of the letter dealing with the straight leg raising test could not have been completed in the way it was unless a proper examination had been carried out. The Second Defendant's evidence was that a score of 75 for the right leg was not unreasonable, but that there was clearly a problem with the left leg. He stressed that, compared with the previous year, the Claimant was in much better shape and could walk unaided, which he had not been able to do before the operation.

The Second Defendant explained that he referred the Claimant to Dr Gupta for two reasons. The first was obviously to get Dr Gupta to deal with the pain. Secondly, he thought Dr Gupta could provide a more accurate diagnosis as to the source of the pain. The Second Defendant said that Dr Gupta had previously spoken to him about a new form of diagnostic injection which dealt not only with the pain but helped to identify the source of that pain. The Second Defendant said that the Claimant was an ideal person to undergo such treatment.

Like the Second Defendant, it appears that Dr Gupta also thought that the back pain being experienced by the Claimant was "episodic", the word he used in his letter to the Second Defendant on 6^th July 2006. In addition, in that letter, Dr Gupta said:

"On consulting today he tells me that his pain is mainly in the left lower back and can get referred to the left lower limb. The pain increases if he stands for two minutes or walks for five to ten minutes. On the VAS he scores more than 10 out of 10 and tells me that his pain is of an aching character. The pain gets worse after lying down for an hour and when he tries to stand up. There is no pain on the right side of his back or right lower limb."

It appears that Dr Gupta carried out the diagnostic injections on 13 July 2006. He summarised what he had done in his letter to Dr Coley of that date. The evidence was that, at least for a number of weeks, the injections helped with the pain. One file note suggested that the Claimant was 60% better following the injections, although in his oral evidence the Claimant seemed to doubt that figure. However, when the Claimant saw Dr Gupta again on 9 August 2006, the pain had returned. Moreover, Dr Gupta's notes make plain that the Claimant was now exhibiting a number of worrying new symptoms. His notes include the following references: "Legs have gone weak now…Cannot stand for long…Numbness in anterior thigh..." On the basis of these new symptoms, Dr Gupta properly recommended an MRI scan. No such scan had been carried out before the end of August.

4. THE SECOND DEFENDANT'S ROLE IN JUNE 2006: LIABILITY AND CAUSATION

4.1 General

On the final day of the trial, immediately before closing submissions, Mr Hartley told me that, in the light of the evidence, he was unable to maintain the Claimant's claim against the Second Defendant. For the reasons set out in the remainder of this Section, I agree with that concession. However, I accept Mr Feeny's submission that I should address briefly the allegations against the Second Defendant and my reasons for rejecting them. There are a number of reasons for that.

First, the allegations were pursued until the end of the evidence, and it is only fair to the Second Defendant to set out my reasons why, in all the circumstances, the allegations should fail. Secondly, I consider that the reasons for the failure of the claim against the Second Defendant have some bearing on the claim against the First Defendant. By way of example only, I note that the Claimant's experts' reports were both formulated on the basis that, but for the Second Defendant's alleged default, the Claimant's condition should have been diagnosed before 27 August 2006, and that what happened when he was in the First Defendant's care was really an extension of that neglect. In fact, for the reasons noted below, it was apparent that there had been no fault of any kind in the Claimant's treatment up until his admission to hospital at 20.30 on 27 August 2006, but that change was not reflected in the evidence of those experts.

The third reason why I need to set out briefly my reasons for rejecting the claim against the Second Defendant is because of the adverse view I have formed of Mr McLaren's evidence on this aspect of the case (see paragraph 22 below). Mr McLaren was the Claimant's orthopaedic expert, and thus an important element of his case against the First Defendant, so my conclusion as to his credibility has an inevitable bearing upon my conclusions as to the Claimant's case as a whole.

The duty owed by a medical professional is well-known. It was identified by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 in the following terms:

"…he 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."

4.2 Liability

The first criticism that is made of the Second Defendant is that he failed to carry out any or any proper physical examination of the Claimant. I reject that allegation as a matter of fact: it is clear on the contemporaneous evidence that a proper examination was performed (see paragraph 9 above). The Second Defendant confirmed that it was.

Secondly, it is said that the Second Defendant failed to provide a proper diagnosis. I regard that criticism as both unrealistic and wrong in fact. The Claimant had a degenerative spinal disease. He was aware of that: he did not need to be told that this was the cause of his back pain, although the Second Defendant said that he did tell the Claimant that his problems related to his longstanding degenerative disease. As to the particular cause of the pain in June, I find that, unlike the particular symptoms which the Claimant exhibited on 9 August when he was seen for the second time by Dr Gupta, there was nothing in the particular symptoms which he exhibited on 19 June 2006 which would or should have alerted the Second Defendant or caused any specific concern.

Thirdly, the Second Defendant is criticised because he said that further surgery should not be considered. That criticism appears to assume that the Second Defendant's advice was that surgery should be ruled out, both then and forever thereafter. It is clear that, on any fair reading of the letter of 19 June, this was not what the Second Defendant was saying, something which he also confirmed in his oral evidence. On the basis of the information then available to the Second Defendant, he did not think that a further operation was warranted. There can be no proper criticism of that view. As the Second Defendant himself explained, once a patient has undergone two lumbar operations, any further operation brings with it the risk of diminishing returns and a greater chance of other harm being caused. Mr Wilson-MacDonald, the First Defendant's expert neurosurgeon, said that the Claimant's was a very complex case, with a complicated history, and he would not therefore have seen him as a candidate for surgery. Mr Crawshaw, the Second Defendant's orthopaedic expert, said the same thing.

Finally, there is the criticism that the Second Defendant failed to recommend an MRI scan in June 2006. Again, I am bound to say that I consider that criticism to be unrealistic. There was nothing specific in the symptoms which the Claimant exhibited in June 2006 to warrant an MRI scan. It was agreed that there were no 'red flags', which would have made such a scan mandatory. There was instead, as the Second Defendant confirmed, "a wealth of detail to go on" without a scan. In any event, all that the Second Defendant did was to refer the claimant on to Dr Gupta. Ultimately, it was going to be a matter for Dr Gupta as to whether or not an MRI scan should be carried out and, as we know, once the Claimant's symptoms had altered, that is precisely what Dr Gupta did on 9 August 2006.

The Joint Statement produced by the experts confirms my conclusion that no sensible criticism can attach to the Second Defendant. In answer to question 3, the experts expressly agreed that the Second Defendant was entitled to make a diagnosis on 19 June without an MRI scan. It was also agreed – in answer to the Defendants' question 1 – that the Second Defendant acted appropriately on that occasion. Although (in relation to these two questions) Mr Ashpole was said in the Joint Statement to be a dissenting voice, I was unable to discern from Mr Ashpole's oral evidence any justification for his minority view. Moreover, he fairly accepted that he was unable to say that the Second Defendant had acted in a way that no reasonable orthopaedic surgeon could have acted; although he made a number of criticisms of the Second Defendant's conduct, he agreed that he could not go so far as to say that the Second Defendant had fallen below the necessary standard. He agreed that he was not saying that the Second Defendant had necessarily been negligent.

Unfortunately, Mr McLaren, the other expert called by the Claimant, sought to resile from the Joint Statement by suggesting that he thought that the relevant question had been a hypothetical one and that, in his view, the Second Defendant should have ordered a scan, after all. This was curious, because the question was obviously not hypothetical (which was why Mr Ashpole had given a different answer to that given by the Defendants' experts). Moreover, the ultimate effect of this change of approach meant, as Mr McLaren confirmed to me, that he had answered a question in the Joint Statement which he considered to be both hypothetical and irrelevant, and had nowhere addressed (either in the Joint Statement or his report) the question which he thought was relevant, and on which he had formed a critical view of the Second Defendant. I cannot accept the validity of this approach in a professional negligence case, which I consider to be unhelpful at best and partisan at worst. As noted below, it was not the only aspect of Mr McLaren's evidence which caused me concern.

In any event, despite his change of position, Mr McLaren was also driven to accept that, whilst he would personally have ordered an MRI scan, he could not say that the Second Defendant's failure to do so amounted to negligence. Mr McLaren agreed that, ultimately, it was a matter of clinical judgment and that he was not saying that no competent orthopaedic surgeon would have failed to order an MRI scan. He thought that the majority would have done. But he could not put it higher than that. Again, therefore, a case in negligence was just not made out.

4.3 Causation

For completeness, I should say that, even if I were wrong in any of my conclusions as to the potential liability of the Second Defendant, I am in no doubt at all that the claim against him must fail on causation grounds. Again, that is principally the result of the contents of the Joint Statement. Amongst other things, the experts are agreed that, even when Dr Gupta examined the Claimant on 9^th August 2006, there were no "red flags"; in other words there was nothing to indicate the imminent development of CES (see claimant's question 8 of the Joint Statement). Indeed, with the exception of Mr McLaren, all the experts are agreed that any MRI scan that was carried out before 26 August 2006 would not have revealed CES (see the answer to question 5). They are certainly all agreed that a scan as at 9 August would not have revealed anything of any significance (see the answer to question 9 in the Joint Statement).

In answer to question 7(a) in the Joint Statement, the experts agreed that, prior to 27 August, there was no indication that immediate surgery was required. Although Dr McLaren purported to qualify that answer (by saying there was no "absolute indication"), it does not seem to me that this qualification makes any substantive difference. Moreover, this was consistent with the experts' subsequent agreement that, even when the Claimant was admitted into hospital on 27^th August, he had not yet developed CES. The expert evidence is therefore all one way, namely that there was nothing in June, or July, or in August (at least prior to the evening of 27 August), which could or should have been done which, had it been done, would have prevented the Claimant from developing CES.

Accordingly, as a result of those agreements, even if – which I do not accept – there was something more which the Second Defendant should have done in June 2006, I reject absolutely the suggestion that any such omission could or would have made any difference to the Claimant's current predicament.

4.4 Conclusion

For the reasons set out above, the claim against the Second Defendant is rejected in its entirety. Mr Hartley's concession, at the end of the evidence, that this claim could not be maintained, was therefore entirely appropriate.

5. 27^TH – 30^THAUGUST 2006 AND THEREAFTER

On the night of Sunday 27 August 2006, as the Claimant prepared to have a bath, he felt as if his legs were going to give way. He subsequently told medical staff that he had fallen over in the bathroom. He was in a good deal of pain and could not sit down, stand up or lay down with comfort. An ambulance was called. The ambulance men told the Claimant that he should call an out of hours GP to recommend an admission to hospital for emergency treatment. The log of the call noted that the Claimant had "collapsed in bathroom…due to severe lower back pain…bilateral pain down right leg". There was numbness down the right leg and bilateral leg weakness. The emergency GP referred the Claimant to A & E, noting a reduction in power and sensation. He also noted "? nerve root compression ??? cauda equina."

The Claimant was taken to Bradford Infirmary. He walked from the ambulance to the wheelchair. The admitting doctor noted that the Claimant "usually mobilises on crutches, but unable to now." Weakness and numbness were recorded in both the right and left legs. The admissions doctor noted that the power in both the right and the left leg was 5/5, but recorded 'N' for tone, reflexes and plantar (ankle). His notes went on to say: "? disc prolapse ? cauda equina." Thus, although the experts at the trial agreed that, at this stage, the Claimant presented none of the particular symptoms of CES, both the emergency GP and the junior admissions doctor both considered that CES might explain the Claimant's condition. It is a matter of regret that other, more senior, doctors at the hospital failed to consider this specific possibility at any time during the following day.

At 23:05 on 27 August, it appears that the Claimant was checked again. It is unclear whether a further test was done of the power in his legs but the notes repeat the '5/5' and the 'N' notations referred to above. There is also a reference to "? disc prolapse". The Claimant was given an injection into his bottom for pain relief. He said that this caused some loss of feeling from the waist downwards and he felt much more comfortable. He was told that it would wear off in about two hours.

It appears that, unusually for him, the Claimant slept well that night. It is unclear when he awoke. At some time between 8 and 9 o'clock that morning, Mr Jha undertook the morning ward round. There are some notes relating to the Claimant. However, it is unclear whether Mr Jha carried out any physical examination of the Claimant at all. On the balance of probabilities, I find that he did not. His notes offer no indication as to what might have been wrong with the Claimant. Critically, Mr Jha did not carry out any investigation into the Claimant's urinary function; he carried out no neurological examination; and he failed to order an MRI scan. The Claimant was simply left in bed.

At some point, the Claimant became aware of the fact that he had no feeling from the waist downwards and did not know whether he wanted to urinate or not. It seems that this had not occurred to him until Ms Nadia Nasir, his daughter, came to visit him just after midday on 28 August. She immediately became concerned that the painkilling injection he had been given on admission, now over 12 hours old, could not explain his loss of feeling below the waist. She went off to speak to a nurse but was unable to make any progress or get any relevant information. One excuse that she was given for the lack of activity was because it was a Bank Holiday Monday and that the Claimant was not a priority case.

Nadia Nasir stayed with her father until shortly after 2 pm. At about the same time, it became apparent that the Claimant's bladder was full. Indeed, it contained about a litre of urine, compared to the normal retention of 350-500 ml. In consequence, a catheter was passed. Ms Nasir confirmed that a catheter was in place when she returned in the evening. However, although there are other notes relating to the Claimant on 28 August, it does not appear that there was any other active intervention in his case for the remainder of the day or the following night.

The notes for 29 August refer to the Claimant as "settled" and it was also noted that he appeared to have slept. At 04:45 the notes say "B.M. recorded". There was a dispute as to whether this was a reference to the machine which recorded blood sugar, known as a BM machine (which would have been relevant to the Claimant, because he was a diabetic), or whether this was a reference to a bowel movement. The competing evidence was difficult to resolve because, although there was a reference to a blood sugar test at 06:50, which might suggest that the event at 04:45 was not connected with blood sugar, Mr Macfarlane made the point that nursing notes would usually say "B.O." for 'bowels open' as opposed to "bowl movement". Ultimately, it did not seem to me that this issue was of any real significance.

Later that morning, the Claimant was seen by Mr Taggart, the orthopaedic SHO. He apparently noted a single score of 3/5 in relation to the power in the Claimant's hip, knee and ankle, although it is unclear whether this related to all three, or just one of them (and, if so, which one). Grade 3 is a movement against gravity but not resistance. Mr Taggart diagnosed CES and requested an urgent MRI scan. Unhappily, for reasons which are not explained, the scan was not carried out until the following day. When, on 30 August, the scan was finally carried out, it confirmed the diagnosis of CES.

The Claimant was referred to the neurosurgery department at Leeds in the early afternoon of 30 August. On admission there, it was recorded that, whilst the power in the Claimant's legs was "4-" the power in his ankle was rated as "0/5". The Claimant was told by the surgeon prior to surgery that the prolapsed disc had been pressing on the bundle of nerves at the base of his spine for so long that, whilst the surgeon had no choice but to operate, the Claimant would probably have permanent damage and never make a full recovery.

The surgery was performed as an emergency late on the night of 30 August. It was noted that it was a "difficult procedure due to scarring tissue". Good decompression was achieved and the plan was for 48 hours of flat bed rest and then mobilisation. The Claimant stayed in hospital until 20 September 2006. During this period, he could not feel the urinary catheter. The discharge summary reported: "Urinary and faecal incontinence continued. Poor mobility – he is currently being hoisted out of bed by nursing staff." A physiotherapy assessment the following day, 21 September 2006, reported saddle anaesthesia and numbness from knees to feet with no ankle dorsiflexion or plantar flexion or toe movement. The power at the hips and knees was graded 2-3.

As noted above, the Claimant has not made a significant recovery since discharge from hospital. He said in his witness statement:

"17. I am left with complete loss of sensation from my groin downwards. I am able to walk very short distances around the house with the aid of two crutches but for most purposes I use a wheelchair. I drive a car which has been adapted for my use.

18. I have to wear an indwelling urinary catheter which enters through my abdomen because my penis is damaged. I am impotent. I also have bowel problems. I have to use Movicol and I often have accidents.

19. I am unable to live in the family home because I have been advised that it cannot be adapted for my use. Therefore I am living at Mary Seacole Court in a one bedroomed flat. This is sheltered accommodation and I have a first floor flat. I feel isolated, lonely and depressed."

6. THE CASE AGAINST THE FIRST DEFENDANT/LIABILITY

6.1 The Law

The relevant test is set out in paragraph 16 above. It is unnecessary to consider it further given the First Defendant's admissions, noted below.

6.2 The Inadequate Treatment

The First Defendant admits that the treatment provided to the Claimant was inadequate. For the avoidance of doubt, I find that the First Defendant, as the authority responsible for the medical treatment provided by the Bradford Infirmary between 27^th and 30^th August 2006, was negligent in the particular ways noted below.

a) Absence of Urinary Investigation

It is not suggested that any urinary investigation or consideration ought to have been carried out when the Claimant was first admitted into hospital. As Mr Macfarlane put it, "there were no alarm bells until the morning." The morphine injection and the subsequent rest cannot be criticised. But, equally, there can be no doubt that the following morning, the Claimant's urinary output should have been investigated and monitored. Mr Wilson-MacDonald, the orthopaedic surgeon called as an expert by the First Defendant, accepted that this investigation should have been triggered by Mr Jha's early morning ward round. This aspect of the Claimant's condition was particularly important given the fact that, the previous night, both the emergency GP and the junior admissions doctor had suspected CES.

b) Neurological Examination

A neurological examination should have been carried out by Mr Jha on the morning of 28 August. Indeed, the Claimant should have been subject to regular neurological examinations throughout the morning and afternoon of 28 August. He was not. Again, that was acknowledged as a culpable failure by Mr Wilson-MacDonald.

c) Failure to Order an MRI Scan

The third (and perhaps most important) failure arising out of Mr Jha's morning ward round was the failure to order an MRI scan. This seems impossible to understand, given the express suggestion of CES. Again, that omission was accepted as a breach of duty by Mr Wilson-MacDonald.

Mr Wilson-MacDonald also properly accepted that the combination of these three failures was particularly important because it meant that the Claimant's rapid development of CES went unnoticed during the morning of 28 August. If these tests had been carried out, and in particular if the MRI scan had been performed, then, as Mr Wilson-MacDonald accepted, the presence of CES (actually CESR) would have been confirmed.

d) Subsequent Failings

Although, for the reasons explained below, subsequent failures were largely irrelevant to questions of causation, it is only fair to the Claimant to point out the ways in which his care continued to be mishandled by the First Defendant. As noted above, on the morning of 29 August 2009, Mr Taggart did what Mr Jha should have done 24 hours earlier and diagnosed possible CES and ordered an MRI scan. However, for reasons which are unexplained, no such scan was carried out. The Claimant again spent the whole day in bed. On the morning of 30 August, a scan was again requested. It was only when this scan was carried out and the results examined, in the early afternoon of 30 August, that immediate plans were made to operate on the Claimant. In the end the operation took place late into the night of 30 August.

6.3 The Delay

It is necessary for me to make findings as to the extent of the culpable delay flowing from the admitted breaches of duty on the part of the First Defendant. In my view, the culpable delay was a period of 48 hours.

It is agreed that an MRI scan should have been ordered. Surgery would not have been contemplated without such a scan. Moreover it is agreed that such a scan should have been ordered at the ward round at about 9 am on 28 August. The burden of the evidence was that, if such a scan had been ordered then, it would have been performed early in the afternoon of 28 August.

I say that for a number of reasons. It was what the experts agreed in their Joint Statement, namely that a scan should have been available in the afternoon (see the answer to question 15). It was also consistent with Mr McLaren's separate view, that the scan should have been available by 'early' that afternoon. Moreover it was also consistent with Mr Wilson-MacDonald's own experience of a busy hospital, which he said meant that a 4 hour wait from ordering a scan to its production was reasonable in all the circumstances. As he explained, given that scanners were always busy during the day, it was not reasonable to expect a scan to be carried out any faster than that.

If the scan had been available early in the afternoon of 28 August, then the need for immediate surgery would have been indicated. When would that surgery have been carried out? Again, in the Joint Statement, the experts agree that the surgery would have been carried out either late in the evening of 28 August or early in the morning of 29 August (see the answer to question 16a). No expert draws a distinction between the effect of hypothetical surgery late on 28 or early on 29 August.

That was, of course, 48 hours earlier than surgery was in fact performed. In this case what happened was that Mr Taggart did on the morning of 29 August what Mr Jha should have done on 28 August, namely order an MRI scan. That explains the first 24 hours of the delay. But his wishes were not acted upon and the request had to be repeated on 30 August. That explains the second 24 hours of the delay. In this way, two full days (or 48 hours) were lost. Thereafter, on 30 August, matters progressed in accordance with the hypothetical timetable set out above. In other words, there was a scan by early afternoon, an immediate decision to perform surgery, and surgery carried out late at night. But by now it was late at night on 30 August, not 28 August. Thus, for the reasons that I have given, the period of culpable delay was 48 hours.

7. THE CASE AGAINST THE FIRST DEFENDANT/CAUSATION

7.1 The Law

In cases of this kind, the court is trying to decide what would have happened if an event which, by definition, did not occur, had in fact occurred: see, for example, Bolitho v City and Hackney Health Authority [1998] AC 232 at 239F. The best guidance on this element of causation can be found in the judgment of Otton LJ in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104. There, he said:

"In reaching my conclusions I start with the following propositions of law.

(1) The burden of proving causation was upon the Plaintiff.

(2) Causation is a question of past fact, to be decided on a balance of probabilities: see Mallett v McMonagle [1970] AC 166.

(3) If he proves that the negligence was the sole cause, or a substantial cause, or that it materially contributed to the damage, he will succeed in full: see Bonnington Castings v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1.

(4) If he fails to cross this threshold then he fails to recover any damages: see Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.

(5) A Plaintiff cannot recover damages for the loss of a chance of a complete or better recovery: see Hotson v East Berkshire District Health Authority [1987] AC 750."

In Hotson, the judge at first instance had awarded the Claimant 25% of his claim on the basis that, on the evidence, but for the culpable delay, he would have had a 25% chance of making a better recovery. This was upheld by the Court of Appeal, but the House of Lords rejected that approach and allowed the appeal by the health authority, stressing that it was necessary to demonstrate that the delay caused actual, measurable loss and damage. Lord Bridge of Harwich stated:

"Unless the plaintiff proved on the balance of probabilities that the delayed treatment was at least a material contributory cause of the avascular necrosis he failed on the issue of causation and no question of quantification could arise…The upshot is that the appeal must be allowed on the narrow ground that the plaintiff failed to establish a cause of action in respect of the avascular necrosis and its consequences."

Lord Mackay of Clashfern said:

"The judge's findings in fact mean that the sole cause of the Plaintiff's avascular necrosis was the injury he sustained in the original fall, and that implies, as I have said, that when he arrived at the authority's hospital for the first time he had no chance of avoiding it. Accordingly, the subsequent negligence of the authority did not cause him the loss of such a chance."

The decision in Hotson is also reflected in the judgment of Otton LJ in Tahir, when he 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."

It seems to me that this is precisely the burden which the Claimant in the present case has to discharge.

In the context of causation I should also refer to the decision of Akenhead J in Oakes v Neininger and Others [2008] EWHC 548 (QB). That was also a case concerned with CESR. Having identified negligence on the part of a doctor and a call-out crew, the judge had to decide when the claimant in that case reached the stage of CESR ("and [was] thus arguably beyond the stage when surgery would have improved his symptoms"), and when he would have been operated on if there had been no breach of duty. The judge concluded that, on the balance of probabilities, if there had been no breach of duty, the claimant in that case would have been operated on before he reached CESR. In other words, in that case, the period of culpable delay was critical, and was the cause of the damage suffered.

In Oakes, it was apparently accepted that, whilst a patient with CESR needed to be the subject of urgent surgery, there were, as the judge said at paragraph 39(a) of his judgement, "generally irreversible consequences of CESR." In this case, whilst the First Defendant maintains that CESR is usually irreversible and that, once that stage has been reached, the chances of recovery are small, there was a different emphasis in some of the evidence of the Claimant's experts. That is something which I consider in greater detail in Sections 7.3 and 7.4 below.

There is one final respect in which the decision of Akenhead J in Oakes is of assistance in the present case. In his judgment, he went on to consider whether, if he had reached a different conclusion as to the time of CESR, so that hypothetical surgery would not have taken place until after CESR, whether there would have still been a claim. At paragraph 50 of his judgment he said:

"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 discernable, significant or relevant improvement."

For reasons which will become apparent below, I consider that this passage, although obiter, is of real significance in the present proceedings.

7.2 When Did CESR Set In?

Although that was the principal issue in Oakes, it is not an issue in the present case. The experts are agreed that the Claimant began to develop CES shortly after his admission into Bradford Infirmary. In the Joint Statement, they agreed that the CESR stage had been reached no later than noon on 28 August, although in reality, it would appear that the actual time for CESR was earlier. This conclusion is based on the agreed report of the urologist Dr Lemberger, who identified CESR as having set in by about 7 o'clock in the morning of 28 August, and Mr Macfarlane's view (on which he was not cross-examined) that CESR was likely to have been present some time before noon that day. We know that, by noon, the Claimant's bladder was overfull (by 50%), so retention had begun before then. Mr Ashpole confirmed in his cross-examination that "the damage was done" before noon.

Accordingly, even if the First Defendant had not been in breach of duty, and the necessary surgery had been carried out late in the evening of 28 August, this would still have been 12 hours or more after CESR had set in. This is a reflection of the very rapid deterioration of the Claimant during the early hours of 28 August. The next issue is what would have resulted from such surgery.

7.3 But For The Delay, Would The Claimant Have Recovered?

a) Summary

The Claimant's pleaded case is in the same form as the Claimant's claim in Tahir. In other words, as Mr Hartley accepted, the claim is not pleaded or put as a 'loss of a chance' case. The Claimant's pleaded case is that he would have made a good recovery if he had been operated on late in the evening of 28 August or early in the morning of 29 August. In my judgment, such a case is not supported by the expert evidence; indeed, it is contrary to the general thrust of that evidence. My reasons for that conclusion are set out below.

b) The Joint Statement

The best starting point is the Joint Statement, where the words used to convey the experts' agreement on this topic need to be carefully considered. Having set out, in answer to question 16(a) of the Joint Statement, their view that surgery should have taken place late on 28 or early on 29 August, in answer to question 16(b) the experts went on to consider what the outcome of that surgery would have been. The answer was in these terms:

"The neurosurgeons [Mr Ashpole for the Claimant and Mr Macfarlane for the First Defendant] and Mr Crawshaw [Second Defendant's orthopaedic expert] and Mr Wilson-MacDonald [First Defendant's orthopaedic expert] believe that surgery at this time would have been too late, and would not have made any difference to the outcome. They agree though that there would have been a small chance that the outcome would have been better had earlier surgery been carried out.

Mr McLaren feels differently. He has had several patients who have presented with a 'full-blown' Cauda Equina Syndrome and who have made a full recovery following expeditious surgery."

Mr Ashpole subsequently modified his position in a letter dated 15 August 2011. He said:

"Mr Ashpole, having also had a number of patients presenting with full blown cauda equina syndrome requiring catheterisation, who have made a complete recovery following expeditious surgery, think that whilst surgery at this time on Mr Hussain would have offered no guarantee of recovery, there would have been a significant chance of some recovery in bladder, bowel and sexual function, and a small chance of very good recovery."

Accordingly, it would appear that, whilst the three experts instructed by the Defendants agreed that surgery late on 28 August would not, on the balance of probabilities, have led to a good recovery, Mr Ashpole and Mr McLaren took a more optimistic view.

c) The Defendants' Experts

It is unnecessary for me to set out in detail the reasons why the Defendants' experts concluded that, on the balance of probabilities, surgery late on 28 August would have made no difference to the Claimant's chances of making a good recovery. It is sufficient to refer only to paragraphs 71-78 of the report of Mr Macfarlane. This lengthy passage was the only occasion, in any of the experts' reports, when an expert explained how and why completion of CESR made the chances of recovery so much poorer. The passage was put to both the Claimant's experts, and they did not dissent from or question any part of it. Paragraphs 77 and 78 read as follows:

"77 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. 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.

78 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 equina compression becomes complete however the prognosis for recovery is much poorer."

As I have said, there was no challenge to this detailed analysis. I find it both compelling and coherent. It is the principal reason why I have concluded that, even if surgery had been carried out 12 hours or so after CESR, the Defendants' experts were right to conclude that the Claimant would not have made a good recovery. But my second reason for that conclusion is because that was, ultimately, exactly what his own expert neurosurgeon, Mr Ashpole, agreed in his oral evidence.

d) Mr Ashpole

Mr Ashpole was cross-examined about the Joint Statement and his letter of 15 August 2011. I found him to be a careful witness (which explained why he wrote the letter qualifying the Joint Statement), and someone who gave measured answers to the questions he was asked. There was this important exchange during his cross-examination:

"Q: If there had been an operation that night [ie 28 August] you say there was a small chance of a very good recovery? That must mean therefore less than 50%?

A: Less than 50%.

Q: I would suggest it was significantly less than 50%?

A: Less than 50%."

These answers, which came at the end of a lengthy passage addressing the Claimant's prospects of making a good recovery, adequately summarise Mr Ashpole's conclusions. Whilst he was of the view that a good recovery could not be ruled out, he accepted that, even if surgery had taken place late on 28^th August, the Claimant's prospects of making such a good recovery were less than 50%. Although Mr Ashpole refused to agree that these prospects were significantly less than 50%, his agreement with the first proposition was sufficient for present purposes; it meant that he agreed with the Defendants' three experts that, on the balance of probabilities, a good recovery would not have occurred. Although the Defendants' experts were stronger in their view that a good recovery had a very small chance of occurring (Mr Macfarlane put it in the 10-20% category) that was, so it seems to me, merely a matter of emphasis. Thus all of the experts, with the exception of Mr McLaren, were agreed that, even if surgery had taken place late on 28^th August, the prospects of the Claimant making a good recovery were less than 50%.

e) Mr McLaren

Accordingly, on a proper analysis, it was only Mr McLaren's evidence which suggested a different answer; only his evidence that supported the Claimant's principal claim, in the face of four other experts who said the opposite, to the effect that surgery late on 28 August would probably have led to a good recovery. Unhappily, for a number of reasons, I found Mr McLaren to be an unsatisfactory expert witness, and I could not conclude that his minority view should prevail over that of the majority.

First, there was his unsatisfactory evidence relating to the Second Defendant (paragraph 22 above). Secondly, there was his (only) report of 12 November 2010, which I consider to be a superficial examination of the Claimant's claim which does not address, except in very general terms, the critical causation issue. The closest that Mr McLaren gets in his report to a consideration of causation is in the second paragraph on page 13, where he says this:

"I have in fact seen and operated on a number of so called 'full-blown' cases and in all there has been a full, or well nigh full recovery. This it has to be said was because they were all picked up within 6-12 hours of the onset of their symptoms; and because they all went to theatre within the 'golden' first 24 hours."