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
		18/01/2018

HIS HONOUR JUDGE FORSTER QC :

The Claimant claims Damages for Injury and Loss arising from her treatment at the Ipswich Hospital which hospital is managed and controlled by the Defendant.

Introduction

1. In July 2011, the Claimant was a patient at the hospital and was under the care of Mr John Powell a Consultant Spinal Surgeon. At that time, the Claimant was recovering from major back surgery for a Cauda Equina Syndrome.
2. On 21 July 2011, the Claimant attended for review and was seen by Mr Powell. It is asserted on behalf of the Claimant that there had been a deterioration in her condition by the time of that appointment. Mr Powell decided to discuss the Claimant's case with professional colleagues. A review was planned in October 2011.
3. In September 2011, the Claimant suffered a deterioration in her condition. She experienced many falls and on 23 September 2011 had to be admitted into hospital. The diagnosis was a Cauda Equina Syndrome. An emergency operation was performed by Mr Lovell. The outcome was poor and the Claimant now suffers from many problems including extensive pain in her legs and back, weakness in her legs, loss of bladder control as well as impaired mobility.
4. The claim is brought upon the basis that there was a neurological deterioration in the Claimant's condition between her appointments in March and July which should have been identified by Mr Powell. It is asserted that the deterioration demanded early decompression surgery which should have been discussed with the Claimant and offered to her.
5. The Claimant's case was initially brought on a wider basis and allegations were pleaded in the Particulars of Claim. A number of the allegations were abandoned at trial. The claim now falls to be considered based on the allegations set out at paragraphs 27 (e)-(j) and at 30 (a)-(d) of the Particulars of Claim.
6. The essence of the defence is that there was no neurological deterioration and that on 21 July 2011 there were no new neurological symptoms. In any event it is said the Claimant's circumstances and presentation were such that it would not have been reasonable to offer decompression surgery.

Essential Factual Background

7. The Claimant who was born on the 2 August 1985 attended a General Practitioner in 2010 with a history of back pain for two years. She struggled to control her bladder and the doctor identified a loss of perineal sensation.
8. She was referred to the Broomfield Hospital where an MRI scan showed a large C4/5 disc protrusion with a rather small canal.
9. On the 7 December 2010 Professor Dowell carried out a discectomy and decompression on the right side.
10. The Claimant lived in Ipswich and it was more convenient for follow-up to be arranged in that area. Accordingly, Professor Dowell made a referral to Mr Powell at Ipswich in the following terms:

"Miss Cameron came in with imminent cauda equina; she had a large L4/5 disc protrusion. She had a discectomy and decompression on the right side. Surgery was slightly complicated by the fact that she went into retention but she is now passing her water and the sensation she tells me is returning to her perineum."

11. On 22 February 2011, the Claimant suffered an onset of lumbar back pain following a twisting injury. She attended at hospital. Under the History of Presenting Condition, it is noted that 'there was some temporary numbness down the legs no loss of faecal or urinary continence'. The Orthopaedic Registrar also recorded that there was 'no alteration bowel or bladder function feels normal when bladder opens'. The Claimant was allowed to go home and no follow-up was arranged.
12. On 17 March 2011 the Claimant attended Mr Powell for review. I consider the circumstances of this review appointment in more detail later. Following the review Mr Powell wrote to the Claimant's General Practitioner:

"I saw this patient in the spinal clinic today and the following is a copy of my clinical note. Cameron was referred to me for follow-up by my colleague in Chelmsford, Prof John Dowell. She has clearly had an excellent result following an acute cauda equina syndrome and is making very good progress. I note she has quite a bulky disc at L3/4 as well and she did wonder whether this will need addressing at some stage in the future but I do note she is asymptomatic at this time. Her wound is well healed although a little sensitive to touch but she has no nerve root tension signs and a normal autonomic function.

For MRI scan July and review thereafter."

13. An MRI scan was carried out and it was reported that the L3/4 intervertebral disc shows a broad based posterior protrusion which along with degenerative canal stenosis at this level is resulting in moderate focal encroachment of the spinal canal with mild encroachment of bilateral neural canals.
14. On 21 July 2011, the Claimant was again seen by Mr Powell. I consider the circumstances of this appointment in detail later. Following the appointment Mr Powell wrote to the Claimant's General Practitioner:

"This poor lady still describes bilateral moderate weakness, 4+/5 of L5 and S1 dermatome. She can walk a few hundred yards before her legs become very tired. I am also mindful of her severe overweight stature and BMI of 50. She still deliberately passes urine frequently to avoid any accidents and the MRI does confirm she remains with a significant disc prolapse at L4/5 and a lesser one at L3/4. I suspect also that when she is up and about this protrusion may be even more significant.

Her clinical situation is a difficult problem, least of which is knowing that she has a further mild cauda equina type syndrome but she is massively overweight and it would be revision surgery. I will discuss her situation with colleagues but I do feel bound to consider the surgical option as I do have some concern that she may rumble on with symptoms for a long period and as well as this I am worried about a sudden deterioration. I have counselled her on this and she will report back urgently if there is any recurrence of her old symptoms for which she had her original emergency surgery in Chelmsford I would very much like Helen Vernau to see her specifically if this can be arranged."

15. On 25 July 2011 and 14 September 2011, the Claimant was seen by a nurse who recorded that the Claimant will be having a further operation.
16. On 22 September 2011, the Claimant was seen by a nurse at her GP practice. The history given was a weakness in the legs and difficulty voiding urine. A diagnosis of cauda equina was made. The Claimant was referred to hospital as an emergency admission and taken by ambulance.
17. At 0935 the Complaint was noted as having 'ongoing back problems, legs becoming increasingly weak, same symptoms as previous cauda equina'.
18. On 23 September 2011, the Claimant was seen by Mr Lovell who noted progressive symptoms since previous decompression and imminent cauda equina. He advised of the risk of permanent neurological loss in view of motor weakness and current bladder symptoms. The revision decompression was carried out later that day.

The Legal Approach

19. There is common ground as to the approach I must take and the test which I should apply. In Bolam v The Friern Hospital Management Committee [1957] 1 WLR 583 at 587 Mr Justice McNair stated:

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in this particular art… Putting it the other way around, it is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view."

20. I keep in mind the matters considered by Mr Justice Green in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB) and the factors considered at paragraph 25 where the Judge gave guidance as to the approach to be taken where there is conflicting expert evidence.
21. In the light of the case law the following principles and considerations apply to the assessment of expert evidence in a case such as the present:

i) Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion.

ii) This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent.

iii) The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself.

22. The Claimant also relies upon the guidance given by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UK SC 11. The Court clarified the law on consent and the need of the patient to be advised as to reasonable alternative treatments. At paragraph 87 it is stated:

"The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-83. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."

The Issues

23. Mr Powell outlined that when he saw the Claimant on 21 July 2011 he was considering a form of reconstructive surgery (which would have included decompression). He did not at that stage contemplate decompression surgery (alone). He accepted that there is 'a massive difference' between the two types of surgery. The experts agree that decompressive surgery should have been offered if there was neurological deterioration. In evidence there was further consideration of the extent of the deterioration required.
24. It is agreed that if there had been no neurological deterioration there would have been no need to proceed with urgent decompressive surgery.
25. The essential issues that must be determined are:

i) Did the Claimant suffer any neurological deterioration between March and July 2011? If there was such a deterioration what was the nature of that deterioration?

ii) Should early decompression surgery have been offered to the Claimant?

iii) Would the Claimant have come to surgery before suffering her serious deterioration in September 2011?

iv) If the Claimant had undergone early surgery would she probably have avoided her serious ongoing limitations and loss of mobility that followed the surgery carried out on 23 September 2011?

The Claimant

26. The Claimant gave evidence and explained how she had suffered from back symptoms for several years. She attended different doctors from time to time. In late 2010, she became particularly worried about her symptoms and consulted a general practitioner. She was referred to hospital where, following an MRI scan, she was advised that she had Cauda Equina and would need an operation.
27. The Claimant describes her situation after the operation in the following terms:

"After the surgery, I felt quite a lot better but I was on a lot of quite strong painkillers… In terms of the dragging of my feet this was no better, it just felt less painful., My walking distance was less than it had been before and my legs felt very heavy and apart from some alleviation of the pain I can't say that I felt significantly better after the surgery."

28. On the 22 February 2011, the Claimant attended at hospital as an emergency. In her statement, she described having an acute episode of back pain when out with friends. She attended the Ipswich Hospital and was later discharged.
29. The Claimant describes how she was referred to the hospital in Ipswich for review. She recalls that the appointment lasted for some 10 or 15 minutes. The doctor, who was Mr Powell, appeared to be relaxed and pleased with her progress. She remembered telling him that her legs were still feeling very heavy and that she was still in pain. Her recollection is that she was examined while sitting in the chair. She said she lifted her top up and the doctor examined the scar. She said that she could not remember any examination being carried out on the couch. She left with the impression that everything was going as well as could be expected.
30. The Claimant describes how: 'after the first orthopaedic outpatient appointment on 17 March 2011 I stayed pretty much the same. I was still in pain and very stiff and slow-moving'. Her doctor eventually said that she was fit to go back to work so she returned to her employment.
31. On 21 July 2011, the Claimant returned for a further outpatient appointment. Before the appointment with Mr Powell an MRI scan was carried out. The Claimant describes:

"I reported the fact that my legs were very heavy and I wasn't walking right and was still in pain. I did still experience numbness down below but Mr Powell did not ask me about any numbness although I had noticed it was even harder to pass water and I did tell him that I would go to the toilet frequently in order to try and avoid accidents."

32. The Claimant recalls that Mr Powell discussed the MRI scan with her and said that: "we may need to revisit the previous surgery." She described being told that he would need to operate and that this would be in about three months. She does not recall Mr Powell telling her that there was any risk of a sudden deterioration. In her statement, she describes how she simply had no idea: 'what might potentially go wrong if the disc was not operated on'. Ms Cameron told me that she did not remember any conversation about deterioration and she thought she would have remembered such a conversation.
33. Ms Cameron was asked whether she would have consented to further surgery if it had been offered. She thought that as the first surgery went well she would have agreed. She would have asked about the risks and benefits.
34. After that appointment, it was necessary for the Claimant to see a nurse on several occasions. She described to the nurse and to others how she was waiting for an operation.
35. On 22 September, the Claimant was going upstairs when she fell backwards. She attended her general practitioner. She explained that she had a fall and it was also taking her longer and longer to pass urine. She explained that she had numb feet, pain in her back and a pins and needles sensation in her bottom. She was referred to hospital. At hospital, it was confirmed that the Claimant was suffering from a Cauda Equina. As previously explained an operation was performed by Mr Lovell. The Claimant did not achieve the recovery she hoped for.

Mr John Powell

36. Mr Powell is a Consultant in Spinal Surgery. He has retired. He has many years of experience and his practice involves all aspects of spinal surgery including elective and emergency procedures. He has been Chairman of an Informed Consent Working Party and has been centrally involved in the establishment of good practice in relation to the obtaining of consent from a patient. A theme of this was the need for proper patient centred discussion.
37. His evidence is based upon his recollection although he did remember the Claimant when he saw her in the courtroom. The claim had not been notified until the end of 2014 and Mr Powell had not been asked to recollect events until the autumn of 2015.
38. Mr Powell saw the Claimant at her review appointment on 17 March 2011. He describes taking a history and examining Ms Cameron. Her wound was a little sore but well healed. He noted that she could walk and that she had control of her bowel and bladder. He considered that she had some neurological impairment but this was to be expected three months following decompression for cauda equina syndrome. He found no nerve root tension signs which would be suggestive of some residual entrapment. In summary Mr Powell considered that the Claimant was doing very well and he arranged a further review following an MRI scan.
39. Mr Powell explained that his note and the letter to the GP are a contemporaneous record of his consultation.
40. Mr Powell explained that although there was a bulky disc at L3/L4 the issue was whether this resulted in any clinical symptoms. He said that he had satisfied himself that the disc was not a problem.
41. Mr Powell stated that there was no nerve root tension. He was asked about his recording in his note that there was normal autonomic function and he explained that this included sphinteric control. The Claimant did have bladder control and there is no note of any urinary control issue.
42. Mr Powell accepted that he did not examine the perineal area for sensory loss. He presumed that there would be such loss. He explained that altered sensation could persist following the operation for a year or longer.
43. An MRI scan was carried out before the further appointment on 21 July 2011. The scan confirmed a residual disc prolapse at L4/5 and a lesser one at L3/4 with spinal stenosis at both levels.
44. Mr Powell found at the appointment on 21 July that the Claimant described and demonstrated moderate weakness (at 4+ out of 5) in the L5 and S1 dermatomes but she could still walk at least 100 yards. In considering her restricted mobility he had regard to her serious level of obesity which can in any event impair mobility.
45. It is accepted that Ms Cameron did describe how she deliberately passed controlled amounts of urine to avoid accidents. Mr Powell considered her bladder to be functioning and controlled. He did not consider there to be any neurological involvement with her bladder.
46. Mr Powell described that in cases where there is a symptomatic disc it is good practice to wait and see. He would want to see if there was any trend before making a decision.
47. In his witness statement Mr Powell stated:

"It is not uncommon for patients with significant disc prolapse to deteriorate to the point where surgical intervention becomes a treatment option, and I could not rule out this possibility in Miss Cameron's case. However, the decision to operate further could not be taken lightly and would need to be justified. One would not perform decompressive surgery unless one really has to; in her case it would have been revision surgery, which is more complex and has a higher complication rate. The risks would have been further heightened by her extreme (grade 3) obesity. I know that my anaesthetist would have been concerned about me operating on such a patient, and he is likely only to have agreed to surgery going ahead if the perceived need to operate were urgent.… I therefore decided to discuss Miss Cameron's situation and seek further opinion from colleagues as we often do."

48. Mr Powell described how he told the Claimant that she had failed to progress further since their last consultation. He outlined and explained the complexity that any further surgery would involve with the heightened risks and uncertain outcome. He did not tell her that she would be listed for surgery but that he would discuss the situation with his colleagues and see her again in three months.
49. When Mr Powell was giving evidence, it became apparent that he was contemplating a major procedure which had not been outlined in his witness statement. He was contemplating a two-level spinal decompression with the need to consider support with a possible fixation. The purpose of the operation would have been to improve canal dimensions and was not to relieve a symptomatic disc.
50. Mr Powell accepted that there was no mention of such a treatment plan in the note of his consultation which formed the basis of the letter to the General Practitioner. It was pointed out that in his statement he referred to the need to perform decompressive surgery. He accepted there was a 'massive difference' between the operations.
51. He was asked about the understanding of the Claimant that she was to have a further operation. Mr Powell stated that at that time he had not decided to operate. He considered that there was no urgent need for surgery and that he would have been foolish to offer surgery.
52. In cross examination Mr Powell stated that the nature of the discussion with the patient was in relation to possible reconstruction surgery to correct long-standing issues.

Mr Robert Lovell

53. Mr Lovell is a Consultant Spinal Surgeon at the Ipswich Hospital. He also has considerable experience having been appointed a Consultant in 2010. He is a colleague of Mr Powell and has discussed the claim with him.
54. Ms Cameron came under the care of Mr Lovell following her admission in September 2011. A diagnosis of Cauda Equina Syndrome was made because of her urinary problems, rapid decline in limb function and saddle anaesthesia. She proceeded to decompressive surgery. When reviewed at three months Ms Cameron was still dependent on intermittent self catheterisation and had very little function in the right leg.
55. Mr Lovell described how spinal decompression surgery carries with it significant risks. Revision surgery is even more difficult with significantly increased risk of nerve damage. For Ms Cameron, the risk was even greater having regard to the fact that she was morbidly obese. She was also a smoker which limits the capacity for nerve recovery. Mr Lovell considered that when the Claimant was seen in March 2011, for follow-up, the picture was consistent with recovery. He would not have expected her to have normal neurology following her surgery.
56. Mr Lovell outlined that if the Claimant had presented to him in July 2011, as she did to Mr Powell, he would not have offered her surgery. He considered the risks were too high and the potential benefits were too low. Even if she had asked for surgery he would not have agreed to it. He considered it would essentially have been an elective procedure to head off a deterioration that may never have occurred but which carried significant risk of serious deterioration and injury.
57. In evidence Mr Lovell stated that it was necessary to consider the picture as a whole. The risks were not justified for any elective procedure. A loss of power and urinary symptoms are potentially important factors but it is still necessary to consider the picture as a whole.
58. Mr Lovell confirmed that Cauda Equina is a clinical condition which must be supported by real radiological findings. In his opinion, the July MRI scan did show a narrowing of the canal but did not show a cauda equina. He drew attention to the fact that the fluid in the sac was seen to be normal and that this ruled out a compression. The MRI report stated, 'the thecal sac shows normal signal intensity.'

The Experts

59. Mr Jonathan Spilsbury, a Consultant Orthopaedic and Spinal Surgeon, gave evidence on behalf of the Claimant and Mr Andrew Quaile a Consultant Orthopaedic and Spinal Surgeon gave evidence on behalf of the Defendant. They had each contributed to a Joint Statement which was amended on 15 August 2017. At my request, they contributed to a further statement on 15 November 2017.
60. The doctors agree that Cauda Equina Syndrome is a constellation of symptoms caused by the compression of the nerve roots below the spinal cord which are called the Cauda Equina. This compression can be caused by a number of factors including fractures, tumours and degenerative change. The degenerative change in question in this case relates to prolapses of intervertebral discs. There are several forms of Cauda Equina Syndrome. These are mainly complete and incomplete. For the symptoms to be labelled Cauda Equina Syndrome there must usually be some element of numbness in the saddle area, interference with bladder function and interference with bowel function. The clinical diagnosis would need to be supported by relevant images most usually from an MRI scan.
61. The doctors consider at the review appointment on 17 March there were no symptoms of Cauda Equina. The follow-up plan of review in July 2011 with the benefit of an MRI scan was reasonable.
62. At paragraph 16 of the First Joint Statement the doctors considered whether there was a deterioration in her neurological symptoms:

"Does the evidence suggest that the claimant had presented with any deterioration or neurological symptoms? If so in what respect?

AQ would say there were no hard neurological signs of deterioration. There was subjective impression that this was a difficult situation of a complex nature. The continuing symptoms appear to have been a reduction of walking distance and moderate leg weakness. This does not add up to a mandatory reason for surgery.

JBS would note that there has been a change over the months and that Mr Powell had made a diagnosis of mild cauda equina syndrome. Whilst this could have improved if treated conservatively, there was a real risk of deterioration, noting the adverse change that occurred over the months. No hard neurological signs of deterioration have been recorded, but no clinical examination is recorded at the meeting on 21/7/11. So, in the context of the reported symptoms it is not possible to say whether she had or had not developed unilateral or indeed bilateral perianal numbness at that time. JBS would highlight that not only did she have reduction in walking distance and moderate leg weakness, but had urinary symptoms, which if the court accepts she did not have in February were new, this therefore adding up to a mild cauda equina syndrome. Discussion of surgery was therefore in his opinion mandatory."

63. In such circumstances Mr Quaile believes that Mr Powell should have discussed Ms Cameron with his colleagues and then followed her up clinically. If the neurological situation had deteriorated that would have been an indication for surgery.
64. Mr Spilsbury considers that Mr Powell should have discussed Ms Cameron with his colleagues during the next week or two and then should have made the necessary arrangements for an early operation.
65. In the further Joint Statement, the doctors considered the evidence given by Mr Powell that he contemplated reconstructive surgery. The evidence had not been expected and had not been considered by either of the experts.
66. The doctors agreed, at the time of their Statement, that if it is correct there was neurological deterioration then the advice from professional colleagues would have been to consider decompressive surgery.
67. When giving evidence Mr Spilsbury explained that in his opinion Ms Cameron presented in July 2011 with a stepwise increase in neurological symptoms. He believes she had an irritation of the cauda equina. As a result of the neurological changes she had what he would describe as a subtle cauda equina syndrome. He accepted that following surgical decompression patients can suffer from neurological symptoms. There is a mixed picture because some patients make a reasonable recovery whilst others may be incontinent.
68. Mr Spilsbury confirmed that after an operation there is greater improvement in the first few months. Thereafter the period of recovery is variable. The autonomic nerves of the bladder may take up to 3 years to recover.
69. He accepted that the Claimant would still be recovering from the initial operation but attached weight to the fact that at the casualty attendance in February 2011 no neurological deficit had been found.
70. Mr Spilsbury accepted that there had been a change in his position in that in his Breach of Duty and Causation Report dated May 2017 he suggested that the Claimant 'was now presenting with a change in her urinary symptoms' at the time of her emergency attendance.
71. Mr Spilsbury considered the July MRI scan. In his opinion, there is compression of the thecal sac. In such circumstances, he had advised the obtaining of a radiological report.
72. The doctor accepted that low back pain and reduced walking distance are not symptoms of cauda equina. He stressed that if there was new numbness in the perineal area that was a red flag situation.
73. Mr Andrew Quaile gave evidence and was immediately examined as to his previous involvement in litigation and as to earlier undertakings on his registration with the General Medical Council. Mr Quaile accepted that he had failed in his duty to two patients. He had offered undertakings to the GMC. He had undertaken not to perform surgery to the thoracic spine and surgery where the primary intention is correcting a major spinal deformity. He said that he had not performed surgery since 2013.
74. In relation to the Accident and Emergency attendance of 22 February 2011 he considers that it is likely that urological function was impaired following the previous cauda equina episode which had been treated by surgery.
75. Mr Quaile said that he was not sure that there was any evidence of deterioration between March and July 2011. He accepted that if there was a serious neurological deterioration such as major bowel or bladder problems with incontinence that that would justify a surgical approach.
76. Each doctor confirmed the risks and difficulties of revision surgery and the complicating features arising from the Claimant's obesity and the fact that she was a smoker. Mr Spilsbury emphasised that the stakes are high in this type of situation and that sometimes it is necessary to proceed despite the difficulties. Mr Quaile considered that she had all the characteristics of a difficult patient for operation. It would not be reasonable to perform an operation unless there was a serious neurological deterioration.

Submissions

77. I received written closing submissions from each party. In view of the fact that they are comprehensive only limited further oral submissions were made.

On behalf of the Claimant

78. It is emphasised that the fundamental allegation is that Mr Powell took no or no effective steps to ensure that the Claimant underwent decompressive surgery electively before a deterioration occurred.
79. Attention is drawn to the fact that the evidence of Mr Powell took an unexpected turn when he asserted that the revision surgery he had wanted to discuss with his colleagues was the more extensive reconstructive surgery. Although in his evidence he outlined his primary concern was with the stenosis he was unable to explain why this was not dealt with in his witness statement or the letter that had been sent to the general practitioner. I am asked to be cautious in my approach to the evidence of Mr Powell.
80. On behalf of the Claimant it is suggested that the evidence of Mr Lovell is predicated on the basis that there had been no neurological deterioration between the March and July appointments. It is suggested that he did not modify his opinion when faced with the alternative scenario that there was such a deterioration.
81. It is asserted that Mr Lovell attributed too much weight to his own interpretation of the MRI scan. The experts had agreed that it shows less cauda equina compression than the MRI scan of 5 December whereas Mr Lovell asserted that it was not compressed.
82. It is generally submitted that I should prefer the opinion of Mr Spilsbury to that of Mr Quaile. At paragraph 31 of the Claimant's Closing Submission it is submitted that Mr Quaile confined his review to those features supporting his own conclusion. Attention is also drawn to a failure to include any reference to or consideration of the Claimant's case and it is asserted that there is a lack of balance.
83. I am asked to note that the assessment of the Claimant on 22 February 2011 did not identify any ongoing urinary symptoms or any perineal numbness.
84. Reliance is placed upon the note of the follow-up appointment in March 2011 which does not record any urinary dysfunction or perineal numbness. In July, urinary symptoms are recorded. Ms Cameron herself states that by July she was suffering altered perineal sensation. She states she did tell Mr Powell her urinary problems were making it even harder to pass water and she went to the toilet frequently to try and avoid accidents.
85. I am reminded that if there was any real neurological deterioration then the advice of colleagues would have been to consider decompressive surgery. It is asserted that Mr Spilsbury has been consistent in this view.
86. The submission concludes that if the Claimant had been offered surgery she would have accepted that surgery and the early intervention would have avoided the poorer result following her operation in September 2011.
87. It is helpfully accepted that the consideration of the Montgomery aspect of the case stands or falls with the finding as to her change in condition between March and July.

On behalf of the Defendant

88. The Defendant submits that the Claimant's case has developed over time. The initial criticisms of the care and management on 22 February 2011 and 17 March 2011 have now been abandoned. Those allegations had included an allegation of failure to consider on 22 February 2011 'obviously abnormal urological function'.
89. It is asserted that on the first day of trial, the Claimant performed a complete volte face alleging now that she was entirely symptom free on 17 March 2011.
90. On behalf of the Defendant it is submitted that on 21 July 2011 the Claimant was not suffering from new neurological symptoms. Urgent surgery was not indicated and Mr Powell acted reasonably in arranging to see the Claimant again following discussions with his colleagues.
91. It is argued that it would not have been appropriate to undertake elective decompressive surgery on a patient with the Claimant's history and co-morbidities in anticipation of a deterioration in her condition which might not arise.
92. The evidence of Mr Powell is commended. It is argued that there is no good reason to suppose that the content of his notes is incorrect in any way and that he was clear on points of principle.
93. In respect of Mr Lovell, it is accepted that he was called as a witness of fact but it is pointed out that he is a qualified professional who is also able to assist the Court. It is submitted that the Court should attach weight to his opinion and that such an approach has been taken in several cases including Stucken v The East Kent Hospitals University NHS Foundation Trust [2016] EWHC 1057 (QB) and Multiplex Constructions (UK) Ltd v The Cleveland Bridge UK Ltd [2008] EWHC 2220. His statement was prepared on the understanding that the revision surgery being considered was of the type contemplated by Mr Spilsbury. This is the surgery that was in fact carried out by Mr Lovell.
94. It is asserted that the evidence of the Claimant does not accord with the contemporaneous note. She does not recall being counselled about possible deterioration whereas this is recorded. She does not recall Mr Powell discussing the risk of surgery whereas this is recorded.
95. Reliance is placed upon the evidence of Mr Quaile that surgery would only be mandated if there was a serious deterioration in her condition such as the onset of perineal numbness and serious bladder or bowel dysfunction. It is submitted that the Claimant was not in this position when she attended in July 2011.
96. On behalf of the Defendant it is contended that a proper analysis of the evidence reveals that in July 2011 there was no serious new neurological deterioration to be identified at the examination. In any event professional colleagues would not have advised early surgery unless the Claimant developed significant neurological symptoms or deteriorated in the future. It is asserted that for the same reasons early surgery was not a reasonable treatment option to discuss with the Claimant.

Discussion and findings

97. I have carefully considered the evidence of each witness and find that it is necessary to exercise some caution when considering the evidence.
98. In my judgment, the Claimant does not have a clear recollection of what took place at her appointments with Mr Powell. I do not say this in a critical way because memories are affected by the passage of time. I appreciate that matters were of importance to her but parts of her evidence do not fit with the recorded information or with what would be reasonably expected to happen. In respect of the appointment on the 21 July 2011 the Claimant has no recollection of any discussion concerning a possible deterioration in her condition. This is clearly recorded in the note which was made immediately after the consultation. She told me that her understanding was that the surgery would relieve symptoms and not carry risks. It is inconceivable that risks were not discussed. It is difficult to understand the evidence particularly as the risks of a spinal operation were described to the Claimant before her initial operation to relieve Cauda Equina. The Claimant also believed that she was to have an operation. The contemporaneous note of Mr Powell confirms that he was going to discuss the case with colleagues and at that time surgery was an option.
99. When Mr Powell came to give evidence, there was a surprising development. The case had been prepared in the normal way. Mr Powell had provided a witness statement. The apparent issues were considered by the expert instructed by each side. The general understanding was that on the 21 July 2011 Mr Powell was considering decompressive surgery. In evidence Mr Powell described that he was considering a form of reconstructive surgery. This had not been raised as an issue. In his witness statement Mr Powell did not mention stenosis as being his immediate concern. I could not understand the failure of Mr Powell to properly set out his case in his statement. His reply that there was a 'little bit of a disconnect' did not provide an answer.
100. The approach taken by Mr Quaile in the preparation of his medical report was robustly challenged by Mr Mylonas QC. In his closing submission Mr Mylonas is critical of the approach taken by Mr Quaile: 'his decision to completely ignore any single feature that supported a surgical approach was deliberately misleading and was grossly unfair to the Claimant'. Attention was also drawn to the fact that the witness had himself been a defendant in clinical negligence litigation and had given undertakings to the GMC which were recorded upon his registration.
101. When assessing the evidence of Mr Spilsbury I am also asked to keep in mind that he had initially supported the bringing of the claim on a wider basis involving allegations in respect of the treatment given in February 2011 at the Accident and Emergency Department and the first review appointment.
102. I accept the evidence of Mr Powell that at the March review he carried out an examination of the Claimant which involved an examination on the couch. This would be in accordance with his usual practice.
103. Mr Powell determined and recorded that there were no nerve root tension signs. Mr Powell further noted that there was normal autonomic function. I accept that to be able to make this finding Mr Powell must have confirmed with the Claimant that she had bladder and bowel control.
104. There is reference in the Medical Chronology prepared on behalf of the Claimant and in the submission to the fact that Mr Powell recorded in his note that the Claimant was asymptomatic. The only sensible reading of the note is that it was a reference to the L3/4 disc. It was not a description of her overall condition.
105. It is accepted that Mr Powell did not carry out an examination for perineal numbness. The referral letter of the 9 December 2010 stated: 'she is now passing her water and the sensation she tells me is returning to her perineum'. I accept that after the operation there is not an immediate return of complete sensation and it can take up to a year to recover. In such circumstances, there is a presumed finding of altered sensation.
106. On behalf of the Claimant it is asserted that by 21 July the Claimant had developed neurological symptoms, her urinary function had deteriorated and her walking distance had reduced to a few hundred yards.
107. I have carefully considered the circumstances of the attendance at the Accident and Emergency Department in February 2011. The analysis of the attendance is set out at paragraph 48 of the Claimant's submission. The hospital record show that there was no loss of faecal or urinary continence. There is no record of perineal numbness. The Orthopaedic Registrar noted 'no change in limb neurology. No alteration bowel or bladder function. Feels normal when bladder opens'. I note that there is no specific note in respect of bladder control.
108. In view of the dispute as to whether there was a neurological deterioration it is necessary to examine the account given by the Claimant. She described that 'after the first orthopaedic outpatient appointment on 17 March 2011 I stayed pretty much the same. I was still in pain and very stiff and slow-moving.' When giving evidence the Claimant confirmed that this was her situation.
109. The Claimant was seen again in July. Mr Powell was clearly concerned and needed to discuss her case with colleagues. In such circumstances, I find that he was careful in his examination and recording of her symptoms. The note of the review is not consistent with the Claimant describing a new or changed symptoms. The note describes that the Claimant was still describing bilateral weakness and still deliberately passes urine frequently to avoid any accidents.
110. If the Claimant had been describing a new symptom or a change then this would have been of obvious importance and would have been recorded. I find that Mr Powell appropriately recorded the symptoms at the time of the examination.
111. The description given by the Claimant of her situation after her initial operation is set out at paragraph 27 of this Judgment. The Claimant drew attention to the fact that her walking distance was less and that her legs felt very heavy. The Claimant describes her account to Mr Powell as follows: 'I reported the fact that my legs were very heavy and I wasn't walking right and was still in pain'. The Claimant did not describe the onset of new symptoms.
112. She further stated 'I did still experience numbness down below but Mr Powell did not ask me about any numbness'. The Claimant herself was not describing the onset of a new symptom. I do not accept that she described any change. Any change would have been important. It would have been recorded and acted upon.
113. It is agreed that the Claimant did tell Mr Powell that she would go to the toilet frequently in order to try and avoid accidents. It is not clear from the Claimant's evidence whether she did tell Mr Powell that she had noticed it was even harder to pass water. In my judgement if she had given such a description it would have been a change which would have been identified by Mr Powell and recorded.
114. Before the July review an MRI scan was carried out. There is dispute as to the interpretation of the MRI scan. I have not heard evidence from any radiologist to assist in the interpretation of the scan. The experts in their Joint Statement considered that the scan showed less Cauda Equina compression than the MRI scan carried out on 5 December 2010. Mr Lovell considered that the report of the scan did not show Cauda Equina compression. The findings did not support there being a compression. I note that the radiologist who carried out the MRI in September 2011 considered there to be very little change between the July scan and the September scan.
115. In any event there was general agreement that Cauda Equina Syndrome is a clinical condition and that scans on their own are not diagnostic. It is in such circumstances that the experts concluded that whether there was a breach of duty may depend on what was said and reported by Ms Cameron. In such circumstances, I proceed on the basis of the agreement by the instructed experts but I am not able to make a considered judgement as to the proper interpretation of the July scan.
116. After considering all of the evidence, I make the finding that at the July appointment there was not a deterioration in the neurological symptoms. The submission made by Mr Mylonas QC is well structured but it does not fully reflect the actual evidence of the Claimant.
117. Although it is not strictly necessary to make any further finding I consider that it is appropriate to consider the issue of whether decompressive surgery should have been offered to the Claimant on the basis there was a deterioration in her neurological condition.
118. Mr Powell stated that surgery would not have been advisable. He considered that the risks of any surgical intervention were significant.
119. Mr Lovell stated clearly that he would not have offered surgery even if there was a neurological deterioration of the type described. I note that Mr Lovell is one of those who would have been consulted by Mr Powell.
120. Mr Quaile stated in cross examination that surgery should have been offered if there was a neurological deterioration but in re-examination stated that surgery would only have been appropriate if there was a significant deterioration. I note the criticism of his evidence in that Mr Mylonas QC submits that the witness had retreated from the position he had taken when cross-examined.
121. Mr Spilsbury acknowledged the risks of surgery but considered that early decompressive surgery should have been offered because it was the necessary treatment option.
122. I generally preferred the evidence of Mr Lovell. He gave his evidence in a clear and measured way. He emphasised the need to consider the whole picture. I do not accept that there is any basis for the assertion that he lacked objectivity or attached too much weight to his own interpretation of the MRI scan. Mr Lovell simply considered that the risks were such that it was not appropriate to elect to operate at that time.
123. I accept that the evidence of Mr Quaile is subject to many considerations but his evidence is consistent with that of Mr Lovell and that of Mr Powell.
124. In my judgement Mr Spilsbury did not attach sufficient weight to the identified risk factors. I have reviewed his analysis at page 19 of his Breach of Duty and Causation Report. The risks were significant – it was revision surgery, the Claimant was obese and she was a smoker.
125. In the circumstances, I find that early decompressive surgery was not a reasonable treatment and should not have been offered to the Claimant.

Order

126. I appreciate the importance of this claim to the Claimant but on the evidence the claim is not made out. There must be Judgment for the Defendant with costs to be subject to a detailed assessment if not agreed.