England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/10/2013

Mr Justice Dingemans :

Introduction

1. This is a claim for damages for clinical negligence made by Mrs Denise Orwell executrix of the estate of her husband, Mr David Orwell deceased. The action raises a difficult issue relating to the timing of the onset of "compartment syndrome" in Mr Orwell's left lower leg. The difficulties in deciding this issue are increased by the facts that: (1) the processes leading to the development of compartment syndrome are, at present, still a matter of scientific speculation; and (2) the development of compartment syndrome after the type of operation performed on Mr Orwell is very rare, meaning that medical literature on this specific topic is not comprehensive.
2. On the 18 December 2007 Mr Orwell, then aged 53 years, who was suffering from rectal cancer, underwent an abdominal perineal resection. This involved the removal of his rectum and anal canal. It was a long operation taking about 9 hours and it is right to record that there is no complaint about the operation carried out by Mr Iain Anderson, consultant surgeon, and that the outcome of the operation was successful.
3. During the operation Mr Orwell was in the Lloyd Davies position. This meant he was lying on his back, with his legs elevated, on a bed which could be tilted head down to increase the elevation of his legs. It is common ground that such a position, over such a period of time, can lead to compartment syndrome.
4. Compartment syndrome is a relatively common complication after severe trauma to the leg or an embolectomy but it is a rare condition, which occurs in about 1 in every 3,500 patients, following surgery in the Lloyd Davies position. In the lower leg there are four compartments of muscle bounded by inelastic fascia. Compartment syndrome in the lower leg occurs when the tissue pressure within the closed compartment of the area of muscle bounded by inelastic fascia, exceeds a critical value. Another description is that the arterial perfusion pressure in that compartment is elevated. In practice once compartment syndrome has occurred, the blood vessels compress and blood flow in microcirculation ceases in the compartment. This means that blood stops flowing to the tissue. The muscle tissue then becomes ischaemic (lacking in blood). The signs and symptoms can include: pain and discomfort; pain on movement of the limb, particularly of toes; altered sensation and finally numbness.
5. The exact way in which compartment syndrome occurs is a matter of scientific speculation, and this was common ground between all the experts. It is sufficient to say that compartment syndrome develops following extended surgery in the Lloyd Davies position as follows: first, during the operation, the blood pressure to the legs will be reduced by deliberate action on the part of the anaesthetist (to reduce bleeding during the operation), by the elevation of the legs, and by the tipping down of the bed board so that the head is even lower than the legs; secondly, during the operation, blood drains from the legs, especially the lower legs; thirdly after completion of the operation, and restoration of gravity, the blood flows back to the legs; fourthly this causes "reperfusion"; fifthly in some of the compartments, compartment syndrome may develop. It is speculated that compartment syndrome is caused by a build up of toxic metabolites and oxygen-derived free radicals.
6. When altered sensation, especially numbness occurs, compartment syndrome has become critical with cell necrosis. Treatment is required, and the treatment must be carried out within 8 hours. Treatment involves cutting the fascia ("a fasciotomy") which allows the pressure in the compartment to be released. If treatment occurs within this 8 hour timescale the patient, after recovering from the fasciotomy, will be left with the operation scars, which might have included a skin graft, but nothing more. If the operation takes place within 8-12 hours the patient will be left with minor residual disabilities. If the operation takes place after 12 hours and up to 24 hours, muscle death of the ischaemic muscle in the compartment will have progressed from the 8 hour point to be complete by 24 hours. In these circumstances during the fasciotomy, some dead muscle will be removed, but (for obvious reasons), a conservative approach will be taken to removing muscle. A further operation is carried out about 48 hours later to see whether all the dead muscle has, in fact, been removed.
7. At some point, the starting point of which is in dispute, Mr Orwell suffered compartment syndrome as a complication of the surgery carried out on 18 December 2007. A fasciotomy was performed in the evening of 20 December 2007, but by then muscle had died in his lower left leg. By the conclusion of two further operations on 24 December 2007, "almost all" of the muscle in the anterior and peroneal compartments had been found to be dead and had been removed. This meant that Mr Orwell was left with some permanent disabilities, including foot drop. This affected his ability to work, and he did not return to work as a patrol man.
8. Mr Orwell died on 2 March 2010 from causes unrelated either to his rectal cancer or to the compartment syndrome. The parties, on the first day of the hearing, agreed damages in the total sum of £26,500 after payment of CRU benefits.
9. It is contended that the operation to treat the compartment syndrome was negligently delayed by a failure to respond appropriately to complaints and clinical examinations, and that this failure to respond in time led to the complications including the foot drop.
10. It is now common ground (following admissions made by letter dated 30 September 2013) that the Defendant, Salford Royal NHS Foundation Trust ("the NHS Trust"), acted in breach of the duty of care owed to Mr Orwell in a number of specific particulars, but there are issues about the full extent of the breaches. However the main issue between Mrs Orwell and the NHS Trust is whether, if a fasciotomy had been carried out at about 0700 hours in the morning of 20 December 2007, which is the earliest time contended for on behalf of Mrs Orwell, it would have made any difference to the outcome for Mr Orwell. The NHS Trust contends that Mr Orwell had developed compartment syndrome immediately after the operation on 18 December 2007.

Some procedural matters

11. This trial was listed for, and took, 3 days. The claim is self evidently important to Mrs Orwell and the doctors involved in the treatment of Mr Orwell, but in the light of the agreed quantum of this claim, it is apparent that the costs which have been incurred are not proportionate to the quantum of the claim. I am not in a position to say more about this point, at this stage.
12. There had been disputes between the parties about the wording of a joint statement following a meeting between the experts, which meeting had in any event been delayed. It appears from the witness statement of Emma McCheyne that one of the Defendant's experts had inserted references to literature in a draft joint statement which had not been considered by the Claimant's experts.
13. On 2 October 2013 (2 weeks before trial) Master Cook, in an attempt to preserve the trial date, ordered that the experts should produce a joint statement based on the material in their reports, and that if the experts wished to refer to new material, they should produce new reports and seek permission from the trial Judge. In the event further formal references to literature were made. Mr Michael, on behalf of the Claimant, drafted Part 35 questions, and these were answered by the Claimants' experts, who also made further references to literature.
14. At the start of the trial it was effectively common ground that, subject to issues of costs which were reserved until after this judgment, all of the new literature should be admitted, so long as the further evidence from the Claimant's experts could also be admitted. This was agreed and directed. Mr Michael sought an order that the Defendant's experts answer Part 35 questions that he had drafted before they gave evidence, and I directed that they should do their best to provide answers. In the event answers were provided, and I granted Mr Michael some time to consider those answers with his experts before the Claimant's experts gave evidence.
15. It is apparent from the material before me that the production of the joint statement from the experts has been unnecessarily complicated and protracted, but I am again not in a position to say more about that at this stage. It certainly appears that it was only with the late admissions of breach of duty and the discussions between the experts, that the real issue in dispute (namely when Mr Orwell suffered from compartment syndrome) and sub-issues raised in relation to that matter (namely: whether it is possible to suffer from compartment syndrome without excruciating pain; and whether the onset of compartment syndrome is ever delayed after surgery in the Lloyd Davies position) became the subject of real focus by the parties. In the event all of the parties were able to deal effectively with all of the material, and I am grateful to both Mr Michael, on behalf of the Claimant, and Mr Henderson, on behalf of the NHS Trust, for all their assistance and submissions.
16. I heard evidence of fact from Mrs Orwell, and Mr Anderson, the consultant surgeon who carried out the colorectal surgery on Mr Orwell, and Mr Jeyam, the consultant surgeon whose team performed the fasciotomy and subsequent operations carried out on and after 20 December 2012.
17. I should record that the way in which Mr Jeyam's witness statement had been drafted for him by the solicitors for the Defendant did not make it clear that he had not even seen Mr Orwell until after the fasciotomy had been carried out. This was unfortunate. It was also apparent that Mr Anderson's witness statement contained a summary of medical notes prepared for him by the solicitors to the NHS Trust. It is often very helpful to have witnesses of fact who were working in the hospital at the relevant time commenting on the medical notes, even if they were not the immediate party to the medical notes. This is because they may be able to decipher handwriting and references, and give details about when ward rounds would have taken place. However in order to avoid inadvertently misleading the other side and the Court, the witness statement must make it clear what is the witness' own interpretation of the notes, and what is a mere repetition of an understanding of what the records show obtained by the legal representatives. As it was, Mr Michael was forced to take unnecessary time in cross examination establishing what, if anything in the statement, was based on independent input from the witnesses. That said I am satisfied that all of the witnesses, Mrs Orwell, Mr Anderson and Mr Jeyam, were giving honest evidence and doing their best to assist me.
18. I also heard expert evidence on behalf of the Claimant and Defendant, and this is addressed in more detail below.

Issues

19. It appears that I need to determine the following major issues: (a) what treatment would have been carried out on Mr Orwell, and when, if the NHS Trust had acted with reasonable care and skill; (b) whether any of the breaches of duty caused the muscle damage brought about by the compartment syndrome suffered by Mr Orwell.
20. In order to determine those issues it will be necessary to determine the following factual matters which depend on contested expert evidence. In respect of the timing of the fasciotomy the following issues need to be determined: (a) was it reasonable for the NHS Trust to consider DVT or pulmonary embolism as a possible cause of the pain and redness in the left leg; (b) when should compartment syndrome have been considered as a possible cause of the pain and redness in the left leg; (c) was it reasonable to exclude DVT and pulmonary embolism first before then excluding compartment syndrome, or could they have been considered concurrently; (d) when, if the NHS Trust had been acting with reasonable care and skill, should Mr Orwell have had a fasciotomy. In relation to the question of whether the delay to the fasciotomy caused any loss it will be necessary to determine; (e) when did Mr Orwell suffer from compartment pressure; (f) whether the damage to Mr Orwell's leg muscles had already occurred by the time at which the fasciotomy should have been carried out.

Applicable principles of law

21. The relevant principles to be applied are common ground between the parties, and I am therefore able to summarise them very shortly. The Claimant has the obligation to show, on the balance of probabilities, both a breach of duty and that the breach of duty caused loss.
22. The NHS Trust is vicariously liable for the actions of the relevant doctors against whom complaint is made. A doctor is liable if he fails to act with the reasonable care and skill expected of a reasonable, prudent and competent doctor. A doctor does not act in breach of duty if the doctor acts in accordance with a proper and responsible practice merely because there is a body of opinion which takes a contrary view.

Mr Orwell

23. Mr Orwell was a patrol man and vehicle recovery worker working for the AA. It is relevant to recall that he was quite a well built man, being 93 kgs in weight and 180 cms in height. Mrs Orwell said Mr Orwell was not fat, and it seems that he was still well muscled. It seems to be common ground that being well muscled is a factor that predisposes a person to developing compartment syndrome. Mr Orwell had been working for the AA since 17 August 1987, some 20 years, as at the time of his treatment for rectal cancer. It is common ground that his work involved heavy manual labour and working with machinery, in addition to driving.
24. Mr Orwell was diagnosed with bowel cancer of the rectum in July 2007. Radiotherapy and chemotherapy was carried out. On 5^th December 2007 tumour had shrunk and therefore the relevant surgery could go ahead.

Operation, post operative care and admissions

25. There is, as might be expected, much common ground about the details of the operation and post operative care.
26. On 18 December 2007 surgery commenced at 0845 hours and continued until about 1730 hours, a period of 8 hours 45 minutes. Mr Anderson was the consultant General and Colorectal Surgeon and Mr Wilson was the Consultant Plastic Surgeon.
27. Mr Anderson estimated that Mr Orwell's leg had been in a "markedly elevated position" for about a couple of hours (also said to be between 1-2 hours) for the early part of the operation, and for another about 1 hour or a little bit more for the latter part of the operation. At times during the operation Mr Anderson reduced the height of the Lloyd Davies position in an attempt to reduce the risk of compartment syndrome. The operation chart, and the blood pressure readings give some indications of when the leg was probably most elevated.
28. Mr Orwell was back in recovery at 1805 hours. He was recorded in the nursing notes at about 1940 hours as being able to move his foot on the left side and had sensation up to the knee. The epidural chart recorded that the left leg felt heavy, but he was able to flex his foot. He had sensation up to the knee, although the thigh felt numb.
29. Mrs Orwell had seen Mr Orwell in the late evening of 18 December 2007 with their children. Mr Orwell had complained that his left leg was "feeling quite numb and was very sore". Mrs Orwell said that Mr Orwell was a stoical person, but he had mentioned this to the nurses who had told him that the numbness was a side effect of the epidural. Mrs Orwell had made a reference to Mr Orwell's comment in her letter of complaint dated 7 January 2008. It appears that following the complaint of numbness the rate of epidural infusion had reduced, and this had reduced the feeling of numbness.
30. On 19 December 2007 Mrs Orwell had seen Mr Orwell again in the morning. Mr Orwell told Mrs Orwell that he had already been seen by a physiotherapist and told to mobilise as much as he could. However Mr Orwell had told Mrs Orwell that he "could not weight bear" on his left leg and that his left leg was "still numb and sore". He had reported that he did not have pain anywhere else, just an aching sensation in his left leg. The physiotherapy records for 19 December 2007 record that there was reduced "sensation/power in the left lower leg secondary to epidural therefore not appropriate to mobilise at present unable to sit out in chair secondary to operation".
31. On 19 December 2007 Mr Orwell was reported to have a "Bromage" score of zero in his left leg, meaning that he had full movement of his knee, ankle and toes. The epidural chart recorded that he had a numb left leg. It appears that Mr Orwell was seen both by Mr Zamit, the Surgical Registrar, and by Mr Anderson, during the day. Nothing of relevance was recorded by either Mr Zamit or Mr Anderson.
32. On 20 December 2007, about 34 hours after the operation, at about 0400 hours, Mr Orwell complained pain, redness and swelling in his left lower leg. He specifically complained of a sore left shin and his TED stocking was removed, which eased the pain. No swelling or hardness was felt, but the left leg felt much warmer than the right. A doctor was informed and asked to review Mr Orwell.
33. The NHS Trust admits that there was a failure on the part of the Junior House Officer to attend Mr Orwell within an hour of being called, and that this represents a breach of duty of care.
34. At 0805 hours Dr Williams, who was a House Officer, carried out an examination of Mr Orwell's leg. He found the left leg to be swollen, with pitting oedema present at the ankle. He was recorded as being "tender laterally". Mr Orwell's calf was recorded as being soft and non-tender. Mr Orwell was recorded to be "neurovascularly intact". Dr Williams recorded his impression "?DVT/cellulitis. Will require USS to exclude DVT, I do not feel enough evidence supporting either diagnosis to recommend treatment at present. Discussed with day team, they will take over and assess." It appears from reports from Karen Griffiths, the nurse on duty, that having failed to get an attendance from Dr Williams, the House Officer ("HO"), she called the Senior House Officer ("SHO"), and both HO and SHO attended after 0700 hours, and were with Mr Orwell at 0745 hours when she went off duty.
35. In clinical notes dated 20 December 2007, and which appear to have been written up at 1000 hours, various details about the healing since the operation are noted. In relation to lower limbs it was recorded "patient has complained of numbness below hip left side since yesterday … This was thought to be due to the epidural … However at about 4 am this morning the patient developed a pain, redness and swelling in the anterior aspect of the left lower limb/shin". It was recorded on examination that "Anterior aspect of left lower limb/shin red, hot and swollen, also exquisitely painful. Left lower limb swollen, hot and painful … Left leg still feels numb over thigh … Could not feel dorsalis pedis … The whole of the left leg looks swollen. The right leg is normal." There was a drawing showing the left leg with shading over the shin area and a note saying "pain redness".
36. A clinical suspicion that the patient might have a deep venous thrombosis ("DVT") and may have had a pulmonary embolism ("PE") was also noted. A Wells score of 10 was recorded.
37. The NHS Trust has admitted that there was a breach of duty in the failure of the Senior Surgeon to consider a compartment syndrome as part of the differential diagnosis at 1000 hours. It seems that the notes set out above were written up by the House Officer following a ward round carried out by Mr Zamit, the senior surgical registrar. Contact was made with the orthopaedic team, who carried out a review at 1045 hours. Mr Anderson said that the fact that Mr Zamit had contacted the orthopaedic team suggested to him that Mr Zamit had considered compartment syndrome as a possible diagnosis at this time.
38. The NHS Trust admits that there was a breach of duty in failing to consider a compartment syndrome as part of the differential diagnosis at 1000 hours.
39. It seems that at about 1045 hours an orthopaedic registrar, Mr Rajasekhar, and the consultant orthopaedic surgeon, Mr Khan, also saw Mr Orwell and agreed that "clinically looks like a DVT" and requested a Doppler ultrasound scan of the left leg.
40. Mrs Orwell suggested in her witness statement that she thought that the scan results were available at 11.30 hours, but this was not supported by the independent documents. The notes do record that both CT and Doppler ultrasound scans would be performed at the same time when the patient went down later on that morning.
41. At 1354 hours the scan was carried out, and it seems that at approximately 1420 hours the ultrasound scan was reported. The showed satisfactory flow and compression of the common femoral vein, superficial femoral vein, and popliteal vein. It was recorded that there was no current evidence of lower limb DVT. At 1500 hours Mr Orwell underwent a CT scan which showed no pulmonary emboli.
42. At 1545 hours it appears that the results were reported to Mr Rajasekhar, the Orthopaedic Registrar. He was noted to have said that there was "no evidence of compartment syndrome this morning and therefore there is no clinical indication for surgical intervention". I should just record that Mr Rajasekhar's name has been misspelled in a number of different ways, and reports of his position varied, but this was clarified in the course of the hearing. The NHS Trust has admitted that it was a breach of duty of care in the failure of the Orthopaedic Registrar to advise immediate compartment pressure measurements at 1545 hours.
43. At 1600 hours Mr Orwell was noted to be lying comfortably in bed, although a bit unsettled after his transfer.
44. Mr Anderson reviewed Mr Orwell and noted the findings of the ultrasound scan. Mr Anderson recorded "left anterior leg compartment is certainly tense and there is some discomfort on passive movement. Patient is aware that two sides are very different. Discussed with Mr S Khan – we both feel that compartment pressure should be measured and fasciotomy done if needs be".
45. At 1800 hours Mr Rajasekhar recorded that he measured Mr Orwell's compartment pressures at 72 and 54 and it was noted "it would seem that the patient might be going for fasciotomies tonight".
46. At 1821 hours Dr Rajasekhar recorded that Mr Orwell had been complaining of pain and swelling in his left leg which had persisted for a day, and some numbness in the thigh. Examination showed "tense anterior compartment, tenderness present, passive stretching some pain, altered sensation 1 web space, ankle and knee range of movement satisfactory". Compartmental pressures were recorded as "anterior proximal 15mmHg; distal 70 mmHg". Mr Orwell's case was discussed by Dr Rajasekhar and Mr Jeyam, the on call consultant, and a plan was agreed that Mr Orwell would have a fasciotomy that day.
47. At about 2100 hours on 20 December 2007 Mr Orwell's fasciotomy began. It appears that it was carried out by Mr Rajasekhar. It was now about 50 hours after his first operation had concluded. In the anterior compartment it was noted that the "EDL" muscle was "discoloured and not contracting 50-60 per cent of these muscles excised". The EHL muscle in the same compartment was noted to be "ok". It was also noted "peronei healthy & contracting".
48. A further operation was carried out on 22 December 2007. It was then recorded that there had been debridement and further excision of necrotic muscle in the anterior compartment and that the "peroneal brevis partly necrotic – excised".
49. The final operation was carried out on 24 December 2012. It was recorded that there was a need for further debridement. The notes recorded "almost all of anterolateral & peroneal compartment muscles necrotic".
50. I should record that it was common ground that it was very difficult when carrying out fasciotomies to determine which muscles were in fact dead, and which might still be saved, that for understandable reasons a conservative approach was taken to cutting out dead muscle, which partly explained the need for further operations, and that sometimes muscle which appeared to be alive would later found to be necrotic.
51. Mr Orwell was then managed in hospital, discharged home, and returned as an out-patient. He was left with foot drop, and it was not until 23 July 2008 that his wound was finally healed.
52. Mr Michael noted in his submissions that the physiotherapist, Nurse Karen Griffiths, Dr Williams, the SHO, Mr Zamit, Mr Rajasekhar and Mr Khan had not been called to give evidence. Mr Michael did not identify what, if any, inferences it would be appropriate for me to draw from the failure to call them. It is true that they have not been called, but it is fair to point out, as did Mr Henderson on behalf of the NHS Trust, that no requests had been made of the NHS Trust to call these persons, and there had to be limits to the number of persons called to give evidence in a claim of this value. I suspect that evidence from the physiotherapist who examined Mr Orwell, and evidence from Nurse Karen Griffiths, might have assisted me in determining the critical issue of when the compartment syndrome occurred. However neither the physiotherapist nor Karen Griffiths have been called to give evidence, and I have to do the best that I can on the material before me, which includes the notes set out above. I do not think it appropriate to draw adverse inferences against the Defendant for failing to call the evidence. It is quite apparent that all the parties have focussed late on what has become the critical issue.

The contested factual issues

53. Before I turn to determine the contested factual issues I should identify that I heard expert evidence on behalf of the Claimant from Professor JA Fairclough, Consultant Orthopaedic Surgeon, and Professor John Dormandy, former consultant vascular surgeon and Professor of Vascular Sciences. I heard expert evidence on behalf of the Defendant from Professor Atkins, consultant orthopaedic surgeon, and Mr Ian Finlay, Consultant Colorectal Surgeon, who had written an article highlighting risks of compartment syndrome following surgery in the Lloyd Davies position.
54. In the light of some of the submissions made about the experts I should record the following. All the experts were, in my judgment, doing their honest best to assist me. All of them had relevant expertise and were able to assist by reference to that particular expertise. I formed the distinct impression that all of them had increased their knowledge about compartment syndrome as a result of considering the views and evidence of the other experts, and the literature. This is despite the limitations with the literature, as set out below.
55. I reject the submission on behalf of the Claimant that I should decide this case by relying effectively only on Professor Dormandy's evidence, because he had seen the most cases of compartment syndrome (about one per month over the course of a long and distinguished career). Professor Dormandy did not himself lay claim to unique expertise, and it was obvious that he had become aware of matters beyond his own clinical experience from considering the literature. I also reject the submission on behalf of the Defendant that I should decide this case by effective reliance only on Mr Finlay's evidence, because he was the only expert to have seen compartment syndrome following surgery in the Lloyd Davies position (a case where there had been immediate onset and no pain) and had written about studies carried out following that one occasion. Mr Finlay did not claim to have exclusive expertise, and deferred when appropriate to the expertise of Professor Dormandy, as well as the experiences of Professors Fairclough and Atkins.
56. It was also submitted on behalf of the Claimant that I should treat the evidence of Professor Atkins with caution. It is right to say that Professor Atkins did give a description of one contested article which was obvious hyperbole ("a nugget of pure scientific gold") and had a tendency to treat everyone as students at a lecture (I make no complaint about this on my part, but it did not seem appropriate so far as the Claimant's experts were concerned). Professor Atkins was also combative when giving his evidence, but part at least of this was due to the way in which he was cross examined which, while sometimes effective, did descend on occasion to little more than argument. It also appeared to be that part of the reason for Professor Atkins' approach was because of his belief that he was right. As it is, I intend to treat all of the evidence with particular care for the two reasons given in paragraph 1 above (namely the lack of scientific understanding of the processes involved, and the rarity of the condition), and because it was apparent that there are not absolutes in this medical area. As evidence to support the last finding I rely on Professor Fairclough's comment in evidence that we were dealing with biology, and not simple logic, and Mr Finlay's explanation that the reason that some compartments in the same leg did not develop compartment syndrome despite having been exposed to the same draining and reperfusion was not logical.
57. I should also record that my findings from the medical literature that has been produced. The medical literature was helpful, together with input from counsel and experts, in helping to describe briefly, what compartment syndrome is, as set out in paragraphs 4-6 above.
58. The literature was also helpful in showing each of the experts that their clinical experience (whether of immediate onset of compartment syndrome, or of delayed onset of compartment syndrome, or of pain, or the absence of pain) could not be considered absolute. In the materials before me there were cases where there had been immediate onset of compartment syndrome (most often, but not exclusively, in cases involving traumatic leg injury) and delayed onset of compartment syndrome (most often, but not exclusively, in cases following reperfusion after vascular surgery). Therefore graphs showing that pressure could build up over time were simply that, graphs showing that pressure could build up over time. Sometimes there might be the immediate onset of compartment syndrome, sometimes a delayed onset of compartment syndrome, and sometimes no compartment syndrome at all.
59. The medical literature before me did not analyse either: (a) the similarities and differences between compartment syndrome following traumatic leg injury and compartment syndrome following surgery in the Lloyd Davies position; or (b) the similarities and differences between compartment syndrome following vascular surgery and compartment syndrome following surgery in the Lloyd Davies position. The literature is based on small numbers of actual examples of compartment syndrome, and some of the supporting references given for propositions are circular.
60. The medical literature showed that compartment syndrome following surgery in the Lloyd Davies position, or near equivalent, sometimes led to immediate onset of compartment syndrome, but also showed that it was possible to have late onset of compartment syndrome. The medical literature also showed that there were cases where there was pain (and in particular "exquisite pain") following the onset of compartment syndrome, and cases where compartment syndrome had occurred without any pain.
61. Finally the medical literature also demonstrated that the pathological processes by which compartment syndrome is caused are not (yet) understood. All of the experts thought that there was a need for further studies in this area, but any such studies will be too late to help me in my determination of this claim.
62. I now turn to set out my findings on the critical issues of fact engaged by this case. As set out above, the first main issue relates to when, if the NHS Trust had been acting with reasonable care and skill, the fasciotomy ought to have been carried out, and the second main issue is whether Mr Orwell had already suffered the muscle death caused by compartment syndrome by that time.

It was reasonable for the NHS Trust to consider DVT or pulmonary embolism as a possible cause of the pain and redness in the left leg.

63. Although this was a dispute which had appeared from the expert reports and openings, and was part pursued through questioning, by the end of the evidence all of the experts accepted that, given the absence of absolutes, it was reasonable for the NHS Trust to consider DVT as a possible cause of the pain and redness in the left leg, albeit as one of a number of possible diagnoses which it is common ground should have included compartment syndrome.
64. I agree with the experts on this point. There were a number of features which indicated possible DVT, and it was proper to consider that as a possible diagnosis for Mr Orwell's leg problem.

Compartment syndrome should have been considered as a possible cause of the pain and redness in the left leg by about 0600 hours

65. After the complaint by Mr Orwell of intense pain at about 0400 hours he should have been attended by a HO within one hour. This is common ground. It is also common ground that the HO could not reasonably be expected to have known about compartment syndrome, but would have known enough to know that the situation was odd, and justified referring up to someone more senior.
66. That more senior person, being either the SHO, or a Registrar on call, should have considered compartment syndrome by about 0600 hours. Although Mr Henderson did make efforts to push out the timetable, there was no reasonable basis to do so. Indeed the NHS Trust's own admission that at 1000 hours there was a breach of duty in the failure to consider a compartment syndrome as part of the differential diagnosis part proves the point. Nothing material had changed between 0600 hours and 1000 hours. All that has been taken out from the timeline was the delay, which it was accepted was unjustifiable.

It was not reasonable to exclude DVT and pulmonary embolism first before then excluding compartment syndrome

67. In submissions this became known as the "concurrent" or "consecutive" point. Professor Atkins suggested in evidence that it would be unsafe to carry out investigations into compartment syndrome before excluding DVT or PE. This was because the testing for compartment syndrome might involve Homan's test, which might release clots, and would involve putting a needle into the compartment, which again might release clots. Professor Atkins said that this was the practice that he required from his teams.
68. Professor Fairclough, Professor Dormandy and Mr Finlay were not aware of any reason why the two conditions could not be investigated at the same time, and Professor Dormandy said he had done so.
69. Although I accept Professor Atkins' evidence of his own practice, I do not accept that it is reasonable to exclude DVT and PE before investigating compartment syndrome for a number of reasons. First this point did not feature in any of the reports written by Professor Atkins, suggesting it is not a point of major concern. Secondly there was no literature suggesting that this was a reasonable practice, suggesting that Professor Atkins' own practice was not universal. Thirdly Professor Dormandy had done such a thing, without any adverse effect. Fourthly, given the time critical nature of dealing with compartment syndrome, delay should be avoided.

If the NHS Trust had been acting with reasonable care and skill, Mr Orwell should have had a fasciotomy at some stage between 0600 hours and 1200 hours

70. If there was no reason to delay the start of investigations into compartment syndrome it became clear that an operation would, if the NHS Trust had been acting with reasonable care and skill, have been carried out at some time between 0600 hours and 1200 hours. The significance of this fact is that if the compartment syndrome commenced at 0400 hours, which I address below, the operation would have been carried out within the time critical 8 hours.

Mr Orwell suffered from compartment syndrome shortly after the operation on 18 December 2007

71. I find that Mr Orwell suffered from compartment syndrome shortly after the operation on 18 December 2007. I find that for a number of reasons set out below.
72. First, immediately after the operation on 18 December 2007 Mr Orwell, having recovered sensation in his left leg, complained of pain his left leg. If that had stood alone I would have been inclined to accept the explanations of Professor Dormandy and Professor Fairclough that such pain was just pain to be expected after an operation of that length, with legs suspended, and that the fact that it was just on one side would not be unusual. However that fact does not stand alone.
73. Secondly, the next day Mr Orwell complained of continuing pain in his left leg to Mrs Orwell. He said it was sufficient to prevent him from taking weight on the leg. The complaint was specific to the left lower leg, exactly the area in which we know that he had compartment syndrome. There was no good explanation about why Mr Orwell should be suffering from such pain that he could not weight bear, unless it was related to compartment syndrome. Pain from the operation could not explain why he could not weight bear, nor why it should be limited to the left leg. Mr Michael submitted that I should not rely on Mrs Orwell's evidence given that her understandable concern would have been to support her husband at the time, and because she was not making notes. I reject that submission because Mrs Orwell's evidence was consistent from her first letter of complaint, through her witness statement and in her oral evidence, and because Mrs Orwell's evidence was in fact supported by the notes. The physiotherapy records show pain in the left lower leg making it inappropriate to mobilise, although the pain was attributed to the epidural. The epidural chart recorded a numb left leg. The clinical notes dated 20 December 2007 record "patient has complained of numbness below hip left side since yesterday".
74. Thirdly, although the fact that by 0400 hours the pain had become so "exquisite" that Mr Orwell woke and complained about it is an important point relied on by the Claimant, it did seem to be capable of being consistent with the pain arising from the death of muscle in the lower leg, as it was with the onset of compartment syndrome. I accept that the drawing showing the left leg with shading over the shin area does suggest that only the anterior compartment is affected, but the contemporaneous record that the whole of the left leg looked swollen is more consistent with the pain being caused by muscle death, rather than just the onset of compartment syndrome. I also note that the early notes of the pain suffered by Mr Orwell at 0400 hours do link it back to the pain that he suffered the day before. As noted in paragraph 35 above it was expressly recorded "patient has complained of numbness below hip left side since yesterday … This was thought to be due to the epidural … However at about 4 am this morning the patient developed a pain, redness and swelling in the anterior aspect of the left lower limb/shin".
75. Fourthly the results of the fasciotomy and subsequent operations show that, by the end, almost all of the muscle in the affected compartments had been removed. This is as consistent with the compartment syndrome having occurred shortly after the operation on 18 December 2007, as it is with the compartment syndrome having occurred at 0400 hours on 20 December 2007. In both cases more than 12 hours had elapsed, and the experts agreed that at some stage between 12 hours and 24 hours muscle death would have occurred.
76. Fifthly, the conclusion is consistent with the medical literature. The literature showed that it was possible for compartment syndrome to commence immediately after surgery in the Lloyd Davies position, as well as it being possible for it to commence after a delay. Further the literature showed that it was possible to develop compartment syndrome without pain, as well as with pain.
77. At the end of the day it seems to me to be an impossible coincidence that Mr Orwell should suffer from pain in exactly the area that we know that he had compartment syndrome, without the pain being caused by compartment syndrome. Mr Michael, part recognising the force of this point, suggested that there might have been the slow build up of compartment pressure, without compartment syndrome actually having occurred. I understand the basis for that submission, but the evidence before me showed that there was either compartment syndrome or there was not. There were not reports of pain following a build up of compartment pressure, without it being compartment syndrome. As was noted in the course of submissions, I suspect that some of the difficulties in this area are caused by a lack of general understanding about why compartment pressure translates into compartment syndrome in some instances but not in others, but I have to decide this case on the basis of the evidence before me.
78. I record that those factors which appealed to Mrs Orwell in her original letter of complaint to the NHS Trust (immediate complaint, same leg, unable to weight bear on that leg) also appeal to me. As noted in argument the position in which the parties had found themselves was, after the late admissions of breach of duty and late intense focus on the time of the commencement of compartment syndrome, almost the reverse of where they had been in initial correspondence. The NHS Trust was now contending that Mrs Orwell was, contrary to their initial stance, right to highlight his pain after the operation, and Mrs Orwell was, contrary to her initial stance, stating that it all began on 20 December 2007.
79. Although I understand, and regret, that my conclusion means that Mrs Orwell's claim will fail, I hope it provides some comfort to her that, in my judgment, Mrs Orwell's initial instincts about when Mr Orwell suffered loss were right.

The damage to Mr Orwell's leg muscles had already occurred by the time at which the NHS Trust ought to have carried out the fasciotomy

80. For the reasons given above I find that the damage to Mr Orwell's leg muscles had already occurred by the time at which the NHS Trust ought to have carried out the fasciotomy. This means that the breaches of duty on the part of the NHS Trust did not cause Mr Orwell loss and damage. The agreement between the parties on quantum meant that I was not asked to make any finding in respect of pain and suffering for the time between which Mr Orwell ought to have had the operation, and the time at which he did have the operation.

Conclusion

81. For the detailed reasons set out above I find that the NHS Trust did act in breach of its duties of care to Mr Orwell in not carrying out a fasciotomy at some time between 0600 hours and 12 noon on 20 December 2007. However I find that the compartment syndrome had started shortly after the operation on 18 December 2007, and therefore the muscle damage had already occurred before any breach of duty on the part of the NHS Trust. In these circumstances I dismiss Mrs Orwell's claim against the NHS Trust.