Neutral Citation [2013] IEHC 273
THE HIGH COURT Record No: 2007/9362P
BETWEEN
MADELINE WRIGHT
PLAINTIFF AND
HEALTH SERVICE EXECUTIVE AND MATER MISERICORDIAE UNIVERSITY HOSPITAL LIMITED DEFENDANTS
JUDGMENT of Ms. Justice Irvine delivered on the 7th June, 2013
Background
1. The plaintiff in these proceedings is a married lady, who was born on the 19th October, 1962. She resides with her husband at Easky, Co. Sligo.
2. In the last week of November or the first week of December, 2005, the plaintiff was sitting astride her husband’s stationary motorbike when it toppled over causing her to fall to the ground. In the immediate aftermath she was not aware of having sustained any significant injury. However, during the following week or so the plaintiff developed quite severe back pain. As a result she attended her general practitioner and later presented to the Accident and Emergency Department of Sligo General Hospital (“Sligo General”) on the 9th December, 2005.
3. As a result of her back complaints the plaintiff was an inpatient in Sligo General on four separate occasions. The periods concerned were as follows:-
(i) 9th – 16th December, 2005;
(ii) 5th – 7th February, 2006;
(iii) 10th – 26th February, 2006; and
(iv) 12th – 16th March, 2006.
She was also an inpatient in the Mater Misericordiae University Hospital Dublin (“the Mater”) over the following periods:-
4. In simple terms, the plaintiff’s claim against Sligo General is that over the first three periods of her care in that hospital, it failed to properly document, assess, investigate and monitor her back condition such that certain symptoms and findings, which ought to have been recognised as signs of a developing or evolving Cauda Equina Syndrome (“CES”) were not identified and acted upon with sufficient speed such that she went on to develop a range of injuries including permanent bladder and bowel damage. That damage, she maintains, was caused by a large herniated central disc at the L4/5 level which led to significant spinal stenosis and pressure on the nerves supplying the lower lumbar spine and which had warranted urgent surgical removal to preserve the integrity of the nerves supplying the bladder and bowel.
5. As against the Mater, the plaintiff claims that her condition on the 28th February, 2006, that being the date of her first attendance at that hospital, was such that immediate operative intervention was warranted and that its failure to operate to decompress the epidural space at L4/5 until the late evening of the 3rd March, 2006, amounts to actionable negligence. She also contends that the surgical approach used by Mr. Keith Synott, Consultant Orthopaedic Surgeon, to remove the offending disc and decompress the spinal cord was inappropriate and fell below an acceptable standard. It is also alleged that the surgery itself fell below an acceptable standard in that she maintains that her surgeon failed to remove the entirety of the disc such that the decompression failed and she went on to require further surgery to remove a remaining fragment of the disc on the 17th March, 2006.
6. The plaintiff also maintains that there was negligence on the part of the Sligo General in its failure to recognise the significance of her clinical condition when she re-presented with signs of CES on the 12th March, 2006. She contends that her symptoms warranted immediate investigation by MRI scan and/or urgent transfer back to the Mater for emergency surgery. However, she did not have her MRI scan until the 16th March, 2006, and the decompression surgery until the 17th March, 2006, as a result of which delay the offending fragment of disc was permitted to cause ongoing damage to the nerves supplying the bladder and bowel thus causing her additional irreversible bowel and bladder damage.
7. As a result of the defendants’ alleged negligence, the plaintiff maintains that she was ultimately referred to the National Rehabilitation Hospital (“rehab”) in April, 2006 for bladder and bowel management. There, she was taught to self-catheterise because of ongoing bladder difficulties. She also claims that during her period in rehab she had significant problems with constipation and faecal incontinence.
8. The plaintiff maintains that she found it difficult to comply with the regime of intermittent self-catheterisation. She told the Court that she found it disgusting and could not cope with it psychologically. She said she wanted to manage her own urinary function and perceived catheterisation as taking away her independence. Urodynamic studies carried out in January, 2007 have established that the plaintiff has no useful bladder function and she maintains that her difficulties in this regard were caused by the defendants’ negligence. As a result, she is required to catheterise twice daily, even though she remains reluctant in this regard and tries to empty her bladder herself.
9. Apart from her urinary difficulties, the plaintiff maintains that she has a range of other physical and psychological problems as a result of the defendants’ negligence. She maintains that she has lost bowel function and needs to irrigate her bowel on a daily basis. These problems, the plaintiff told the Court, have had a profound effect on her daily life in that she is now restricted from participating in normal social activities. She is presently under the care of Prof. O’Connell at St. Vincent’s Hospital in respect of her bowel disorder. The plaintiff complains that she has ongoing significant back pain which affects her shoulders, neck, arms and legs. She maintains that she is limited in her walking and sitting capabilities and that she needs two crutches to walk. She attends Mr. Victory, Consultant Anaesthetist, at St. Vincent’s Hospital in respect of her ongoing back and related pain. She also complains of significant depression and is taking substantial amounts of antidepressant medication.
10. Both defendants deny all allegations of negligence. In particular Sligo General maintains that it carefully investigated, monitored and treated the plaintiff’s condition and paid proper and due regard to signs and symptoms which are associated with CES. It maintains that the care it provided for the plaintiff during each period when she was an inpatient was in accordance with the then prevailing standards. The plaintiff’s history and clinical signs prior to the 20th February, 2006, did not warrant the procurement of an emergency MRI scan, as was contended for on her behalf, and her condition during her first three periods of hospitalisation at Sligo General did not mandate her more expeditious transfer for expert evaluation to the Mater.
11. In its defence the Mater maintains that the plaintiff did not have signs and symptoms which required emergency surgery at the time she was first seen on the 28th February, 2006. It contends that, having regard to her clinical history and presenting symptoms, a decision was made that early surgical intervention was warranted against the risk of the sudden onset of acute CES. The fact that surgery, however, which had initially been scheduled for the 1st March, 2006, was not carried out until the 3rd March, 2006, is not evidence of any want of care for the plaintiff’s condition particularly in circumstances where the delay was due firstly to the fact that other procedures scheduled ahead of the plaintiff’s operation ran later than expected on the 1st March, 2006. Thereafter there was the difficulty of finding a space for her surgery in the operation lists and the situation further compounded by the fact that an emergency procedure trumped the plaintiff’s surgery when it was rescheduled for the 2nd March, 2006.
12. As to the allegation that the surgical approach adopted by Mr. Synott, Consultant Orthopaedic and Spinal Surgeon, was inappropriate and that he should have performed what was described as a wide laminectomy rather than the less radical hemilaminectomy which he carried out, the Mater maintains that the latter procedure was in accordance with the prevailing practice for a surgeon faced with a large sequestered disc at the L4/5 level in a patient showing signs of CES. As to the standard of the surgery performed by Mr. Synott, the Mater maintains that he fully removed the offending disc following which he decompressed the cauda equina as was appropriate in all of the circumstances. It maintains that the plaintiff made an uneventful recovery from the surgery carried out on the 3rd March, 2006 and that some days after her discharge and entirely independent of any negligence, she developed a further disc prolapse, referred to as a recurrence, at the L4/5 level as a result of which she re attended at Sligo General on the 12th March, 2006.
13. In respect of the period commencing the 12th March, 2006, and concluding with her second surgical procedure on the 17th March, 2006, both hospitals maintain that they promptly investigated the plaintiff’s condition as a result of which, having had an MRI scan on the 16th March, 2006, she had further surgery on the following day as a matter of urgency.
14. Finally, in relation to causation, the defendants maintains that the musculo skeletal symptoms complained of by the plaintiff in her neck, shoulders, back, arms and legs are unrelated to any injury that could have been caused by CES. Likewise, they maintain that her bowel symptoms do not relate to CES or any alleged delay in dealing with that condition. As to the plaintiff’s bladder function, the defendant accepts that she has an atonic bladder but maintains that she has not discharged the burden of proof to establish as a probability that this condition is related either to CES simpliciter or ought to be associated with inadequate or delayed surgical intervention. Even if there was any negligence on the part of the defendants, they maintained that the plaintiff’s bladder problems may well have been caused by her failure to comply with the regime of self catheterisation advised by her clinicians and that even if there was any unwarranted delay in her surgery that as a matter of probability it is unlikely to have adversely affected her outcome. It further maintained that the plaintiff’s medication for her other medical ailments which are un-associated with CES are likely to be responsible for a significant portion of such bladder and bowel symptoms as she may truly have and that her diabetes may also have some role to play in relation to her urinary dysfunction.
Prior Medical History
15. The plaintiff prior to the events which are the subject matter of these proceedings, had a medical history which is of some relevance. In 1994, as a result of ongoing back pain she had a discectomy carried out at the L4/5 level of her spine. This was carried out in Hillingdon Hospital in the United Kingdom. The plaintiff also had a history of approximately eighteen months’ urinary incontinence in 1994. Notwithstanding a period of investigation and the carrying out of urodynamic studies, no neurological deficit was ever identified. Ultimately, a diagnosis of stress incontinence was made.
16. In addition to the aforementioned matters, the plaintiff also had a history of depression, but this does not appear to have interfered with her from a vocational or personal perspective. She was in a position to hold down full time employment with the Department of Defence in what appears to have been relatively challenging employment until such a time as she came to Ireland with her husband in 2004. Following her arrival, she registered as a patient with the practice of Dr. O’Gorman and was an infrequent attender throughout 2004 and 2005. Her first attendance with Dr. O’Gorman in respect of back pain was on the 8th December, 2005, when she presented with a history of having fallen from a motor scooter some thirteen days before. In the ten months leading up to that attendance she had not sought Dr. O’Gorman’s advice in respect of any medical problem.
Chronology
17. The following is an abridged compilation and chronology of what I consider to be some of the more relevant entries in the clinical, physiotherapy and nursing notes in Sligo General and the Mater. For ease of reference those extracts which are from the nursing notes appear in italics.
| 2005 |  |
| 9th December | The plaintiff attends Sligo General A & E. She reports back pain getting worse all week and numbness in the left leg. No history of perianal numbness, bowel incontinence or loss of power. On examination, reduced sensation in left lower limb, reduced power in L. big toe, straight leg raising (“SLR”) reduced to 50 degrees bilaterally. Impression: back pain with neurology |
| 10th December | On examination: L. leg slightly reduced power. Decreased sensation on dorsum of L. foot. Impression: mechanical back pain. Patient felt she had not emptied her bladder and complained of left buttock pain radiating to the thigh and knee. |
| 12th December | The plaintiff’s pain is reported as improved and she is mobilising. |
| 13th December | Reviewed due to pain in a.m., p.m., pain is improved. She is mobilising well. |
| 14th December | Patient in good form. For CT. Seen by dietician. |
| 15th December | The plaintiff is mobilising around the ward. She has no real complaints. Gynaecological consultation. Gives history of urinary incontinence. |
| 16th December | Patient discharged from hospital. The report of CT scan: appearances favour recurrent central disc herniation at L4/5. A sequestered component cannot be excluded. There did not appear to be any significant encroachment but the radiologist reported that an MR. with contrast would clarify this issue. Medical notes record that the patient was not suitable for MRI due to size. She was discharged for review at outpatients’ in two months. |
| 2006 | |
| 5th February | The plaintiff reattends Accident and Emergency Department of Sligo General. Reports progressive back pain over six weeks, pain in both legs. On examination: Restricted SLR R 10 degrees and L 30degrees. Too tender to allow back examination. Given IV morphine. Triage: She reported difficulty passing urine secondary to back pain |
| 6th February | Clinical examination: sensation in R. leg decreased, normal rectal tone and perianal sensation. The patient was admitted for pain control including morphine. Query for MRI and discharge when able. No change in general condition. |
| 7th February | Patient discharged herself from hospital, other patients were annoying her. Patient could not tolerate MRI claustrophobic. Up for shower, seen by physio. Plan for discharge. Patient adamant to go home. |
| 10th February | Readmitted to Sligo General. Triage: Pain radiating L.side.Sensation reduced on R. History: R sensation whole L.leg, difficulty passing urine for three days, no urinary or faecal incontinence. Normal control. Bilateral reduced SLR. 30 degrees R. 10 degrees L. Power reduced L.leg. Query for MRI. Unbearable back pain since discharge, patient very stressed when transferring to commode-bed pan offered-unable to roll onto same. Query book MRI Monday Dublin. |
| 11th February | Patient is distressed and tearful ++, unable to use slipper pan to pass urine. Bladder appears palpable. At 16.00 passed urine +++ and bed sheets wet. |
| 12th February | Complaining of difficulty passing urine. For catheterisation. No motor deficit of lower limbs. Decreased sensation of left leg and foot. Patient complains she had not passed urine for five days. Unable to use bedpan. Fluid balance chart: Catheter inserted at midday. Patient passed 1050ml of urine and was clamped. At 23.00 passed an additional 1000ml. |
| 13th February | Patient passed 1400ml urine at 2am. Patient does not want catheter out. Feels pressure in vaginal area. pm passes two large stools. Patient feels terrific. Reports bowel problems for previous seven weeks. Catheter out. Patient using bedpan on request. |
| 14th February | Patient reports not feeling her bowels move the previous days. Denies bowel and urine incontinence. Complained of numbness in the left buttock. Decreased sensation in L2 -L5. Per rectum: normal anal tone, squeeze and perianal sensation. MRI appointment given for Monday 20th. Unable to stand for physio. Complaint of spasm in the left groin and numbness of the left foot. No evidence of CES per Mr. Shariff. |
| 15th February | Pain in buttock. Awaiting MRI in Beacon next Monday, 20th. For anaesthetic review for pain control. At 19.00hrs patient complains of pain in her left hip and groin. She described the pain as feeling numb. She reported getting an urge to pass urine and then could not go. It then felt like spasm and a large amount passed. |
| 16th February | In severe pain when seen by physio. Reported pain in L. buttock, hip calf with severe spasm. Started to cry when efforts made to move her from lying to seated position. Ice pack to ankle for spasm. Passing urine via bed pan. No complaints overnight.
Dramatic improvement after Neurontin. Able to get on her feet. |
| 17th February | Numb left buttock. In good form. SLR on L 40 degrees. Tolerated standing for ten seconds three times. No complaints voiced to night staff. |
| 18th February | No clinical notes. Pain in left leg. Ice to left buttock. Following encouragement patient stood out of bed and used commode to pass urine. |
| 19th February | No clinical notes. Mobilised out of bed with minimal assistance. Complaint of pain and spasm from l. buttock to l. thigh. |
| 20th February | Open MRI carried out at Beacon and patient returned to Sligo. Distressed++. Slight urinary incontinence early night. Used bed pan. Ice applied to ankle for spasm. |
| 21st February | Films reviewed. Large disc present. Neurontin increased. Original copies of MRI and letter sent to Mr. Synott in the Mater. In good form in early am. Crying with pain at 11.00. A referral letter to Mr. Synott was prepared suggesting a discectomy. Letter records the patient as having no motor deficit and stating that the MRI report would be forwarded. Seen by Occupational Therapy. In too much pain to demonstrate and function fully. Is unable to walk. Wheeled to toilet on commode. |
| 22nd February | No clinical note. Report on MRI generated by Beacon. Large central disc herniation reported at L4/5 causing significant spinal stenosis at this level. Mobilised to toilet with zimmer frame. Requested cyclomorph for severe pain in l.leg. |
| 23rd February | Epidural administered for pain radiating to both legs. Complains of buttock pain radiating to both legs left greater than right. Patient had a heavy left leg and numbness in l.foot.
Epidural requested. SLR increased in L decreased in R. To theatre for epidural. |
| 24th February | Pain improved. No motor or sensory deficit reflexes. For discharge. Bed rest. 11.30 a.m. Patient said pain was returning. Patient chartered for outpatient clinic in Mater the following Tuesday. Patient refused to go home. Letter prepared to Mr. Synott enclosing the report of MRI. In good form. Ice pack to l. leg 18.00. |
| 25th February | Nothing unusual to report. |
| 26th February | Patient medicated. Slept well. Discharged from Sligo General with appointment for Mater on the 28th February, 2006. |
| 28th February | Attended Mater. Admitted. Operation planned for the 1st March, 2006. History given that the patient had a few episodes of urinary incontinence in the last week. No back pain. Complained of altered sensation in perianal region. Patient felt numb passing urine. On clinical examination she was noted as having no urinary or faecal incontinence. Straight leg raising reduced more on the left than right. Beside the entry for “Diagnosis” was written “(A) cauda equina” which the defendants maintained meant that the clinicians were assessing the plaintiff for CES while the plaintiff claimed the note evidenced a diagnosis of CES. Pre-op assessment done on 28th. Patient admitted to the ward at 19.30. Admitted from the fracture clinic for prolapsed L4 and L5 disc and cauda equine, seen by anaesthetist. Fasting for operation tomorrow. |
| 1st March | Notes reveal the operation was not reached. Patient complaining of constipation for three days. Following lactose, bowels opened three times. Seen by Mr. Synott. Patient still awaiting theatre at 17.00. Operation cancelled. |
| 2nd March | Patient waiting lumbar spine decompression surgery. No operation today. Emergency spinal case came in last night and list increased. Per rectum examination. Tone decreased. Complaining of increased numbness on the left. For surgery tomorrow evening. For lumbar decompression spine in afternoon. |
| 3rd March | Operation done. Operation note records diagnosis as lumbar disc displacement. Findings recorded as large sequestered disc at L4/5. Procedures recorded include large disc identified and removed. Irrigation to annulotomy. Nerve root free and space decompressed. |
| 4th March | Bladder palpable patient catheterised. Patient unable to pass urine. At 3.30a.m., 1600ml drained. Catheter out at 6am. |
| 5th March | Seen by Mr. Synott. Able to void in commode at 16.00hrs. |
| 6th March | Voiding freely. Patient very comfortable. Subjectively sensation improved. Large soft bowel motion this am. Passing urine in commode. Repeat ASIA scored showed no deficit and sensation objectively normal. Fit for discharge to Sligo General. |
| 7th March | Had diarrhoea. Patient in separate room. Walking better on crutches. Patient very happy she had operation. Patient walking with crutches. No new issues. Mobilising with crutches. |
| 8th March | Patient is noted to have said hers leg was “mine again”. Patient happy and discharged. |
| 12th March | Patient readmitted to Sligo General. Referred from West Doc with history of one day of faecal incontinence. Clinical note records history of urinary retention, faecal soiling and decreased sensation in left leg. Urgency with bowel motion. Pins and needles right upper leg. Numbness throughout left lower leg. Decreased sensation in the left perianal skin. Impression noted the clinician found no obvious signs of CES. Disc prolapsed L5/S1. On examination anal tone was normal. Reduced sensation on perianal examination on the left side. Urgency ++ on passing bowel motion. Has soiled pants twice. Numb on passing urine and unable to empty bladder. Per rectum examination normal tone. |
| 13th March | 00.15 hrs . Patient reported she had been ok after surgery until previous day. One episode of faecal incontinence recorded. Has urinary retention. Pins and needles in left foot. Discussion with registrar in Mater who was not concerned with the patient’s symptoms and was not keen to take her. Doctor in Mater was advised that they could not do an MRI on the patient in Sligo General. He advised patient to remain on bed rest and attend the outpatient’s clinic on Tuesday. Ambulance booked for the following morning to take plaintiff to Mater appointment. Referral letter for Mr. Synott is prepared recording patient’s symptoms. |
| 14th March | Patient transferred to Mater by ambulance from Sligo with catheter in situ.
Patient seen in Mater. Complaint of difficulty passing water. Query faecal incontinence (watery) . Reduced L. perianal sensation and left L5/S1. Normal anal tone. Attempted to pass urine without success. Abdominal pain +++. Cannot pass urine. Patient advises that intermittent catheters were being passed when in Sligo. 1200ml urine drained. Needs repeat MRI. On return to Sligo General: Letter prepared to request MRI in Beacon with direction that results be sent to Mr. Synott. |
| 15th March | Sligo General makes contact with Beacon to get an open MRI. Referral letter written. Appointment for the 16th March, 2006, at 10a.m. Further letter written to Mater asking if the patient could be reviewed by Mr. Synott after MRI. |
| 16th March | MRI carried out in Beacon showing mass impinging on central canal consistent with disc recurrence. Seen thereafter at Mater. Admitted for recurrence of leg pain, difficulty voiding and bowel dysfunction. Pain improved but increased incontinence, bowel dysfunction, retention and numbness in the perianal area. For laminectomy Monday. |
| 17th March | Laminectomy carried out in evening. Operation note. Diagnosis: Lumbar disc displacement. Findings: residual disc fragment. Procedure noted as retrievable of extruded disc fragment. Preoperative assessment notes cauda equina syndrome. |
| 3rd April | Discharged to rehab. |
The Judgment
18. I have decided that for the purposes of this judgment I will not try to set out a précis of all of the evidence heard as to do so would be an enormous undertaking given that the period under scrutiny is so extensive. I will, however, briefly summarise the more significant aspects of the evidence of the expert witnesses in relation to the liability issue with the exception of their views as to the care afforded to the plaintiff during her first and second period of hospitalisation i.e. 9th – 16th December, 2005, and 5th – 7th February, 2006. In respect of these periods the plaintiff’s experts were not sufficiently ad idem such that the Court could reasonably conclude that the standard of care afforded to her fell below that which was acceptable. However, it is of course the case that when considering the standard of care afforded to the plaintiff during her subsequent periods of hospitalisation, her symptoms and the results of investigations carried out during these earlier periods are relevant. In this respect, the plaintiff’s experts considered the following matters particularly relevant, namely:-
(i) the increased severity of the plaintiff’s back pain post the 16th December, 2005;
(ii) the findings of the CT scan of the 14th December, 2005, which reported a recurrent central disc at the L4/5 level and advised that an MRI scan to clarify these findings be obtained;
(iii) the bilateral nature of her symptoms and her significantly reduced straight leg raising capacity on the 5th February, 2006; and
(iv) her complaints of difficulty passing urine secondary to back pain on admission to Accident and Emergency on the 5th February, 2006.
19. In reaching my conclusions in respect of liability I have applied the test set out by Finlay C.J. in Dunne v. Holles Street Hospital [1989] I.R. 91 which is follows:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
20. Insofar as expert testimony is concerned the Court heard evidence on the plaintiff’s behalf from Mr. Richard Coombs, Consultant Orthopaedic Surgeon, Mr. Donal Campbell, Consultant Neurosurgeon, Mr. Ronald Miller, Consultant Urologist, Mr. Raymond Victory, consultant anaesthetist, Dr Mary McGuire, Consultant Psychiatrist and Mr. R. D. Illingworth, Consultant Orthopaedic Surgeon. On behalf of the defendants, the Court had the benefit of expert testimony from Mr. Ciaran O’Rourke, Consultant Orthopaedic Surgeon, Mr. Ronald Granger, Consultant Urologist, Prof. Ciaran Bolger, Consultant Neurosurgeon, Mr. Michael Grevitt, Consultant Spinal Surgeon and Mr. Eadhbhard Mulligan, Consultant Colorectal Surgeon. In addition to these expert witnesses, the Court also heard evidence from the plaintiff herself and from her general practitioner, Dr. Mulligan. On the defendants’ behalf, the Court heard evidence from Mr. Brendan Healy, Consultant Orthopaedic Surgeon and Mr. Keith Synott, Consultant Orthopaedic and Spinal Surgeon, who gave evidence as to the care provided to the plaintiff during her respective periods of hospitalisation at Sligo General and the Mater.
Cauda equina Syndrome
21. Having heard a substantial amount of evidence concerning the condition known as CES, I believe it may be helpful, in the context of this judgment, to set out a small amount of what I think is relatively uncontroversial information regarding this condition, its nature, signs and symptoms. CES is caused by compression of the multiple sacral and lumbar nerve roots in the lumbar vertebral canal known as the dura. CES is a rare and potentially devastating condition. It can present in an acute fashion following disc herniation when the symptoms of perianal sensory loss and sphincter disturbance will be present with almost immediate effect making its diagnosis relatively straightforward. In the alternative, CES may develop insidiously in the presence of back pain with the progressive development of a range of symptoms which may include urinary retention or incontinence, sensory deficit or weakness in the leg, absent ankle jerk and objective reduced perianal sensation or rectal tone. During this period of time when CES is incomplete, the condition is often referred to by the nomenclature of CESI. When the condition deteriorates the patient may develop urinary retention and lose executive control of the bladder or bowel and at this point the patient is often described as having CES with retention or CESR. A patient may also develop CESR in an acute fashion as opposed to reaching that condition by way of progression from CESI.
22. The expert witnesses in these proceedings were all agreed that when CES or CESI is suspected, a full neurological examination is warranted and this includes an assessment of the patient’s perianal sensation and anal tone. An MRI scan or myleogram can be of assistance in assessing the extent to which the cauda equina may be compromised by a prolapsed disc and in the presence of perianal sensory loss and sphincter disturbance will allow the diagnosis be completed.
23. There are a number of what are called red flag signs which warn clinicians of the possible onset of CES and which indicate they may require referral for specialist advice and these are:-
Because the effects of CES can be devastating, it is essential that the relevant signs are recognised and acted upon before permanent nerve damage occurs.
24. Medical opinion is far from universal or agreed as to the point at which surgical intervention is mandated in cases of CESI and CESR. The medical literature and expert evidence would suggest that most clinicians would advise that surgery in either case should be carried out within 48 hours of the plaintiff’s presentation. In cases of CESI, the consensus for early intervention is much greater than in cases of CESR where the damage to the bladder may at that stage be beyond recovery regardless of surgery.
25. In the present case, one of the conclusions the Court is asked to reach is that there was a failure on the part of Sligo General, during the plaintiff’s third period of hospitalisation, to pay attention to the red flag signs of CESI and that had they not failed in this regard, the plaintiff would have had an emergency MRI scan followed by immediate surgical intervention which would have led to either a full recovery or one which was substantially better than that which ultimately occurred.
Third Period of Hospitalisation: 10th – 26th February, 2006
26. The two most significant criticisms made by the plaintiff’s experts regarding her care over this period were that there was an unacceptable delay in (i) obtaining an MRI scan or some other test capable of determining the extent to which the plaintiff’s cauda equina might be compressed by a central disc prolapse having regard to signs which they maintained potentially flagged the presence of CESI and (ii) transferring the plaintiff to the Mater for emergency evaluation and surgery having regard to the MRI scan of the 20th February, 2006.
27. The plaintiff’s experts told the Court that an urgent MRI scan was warranted regardless of any difficulties due to the plaintiff’s size, feelings of claustrophobia or the unavailability locally of an MRI scanner. From the CT scan of the 14th December, 2005, it was known that the likely cause of her problems was a L4/5 central disc. On admission to the Accident and Emergency on the 5th February, 2006, the plaintiff was having difficulty passing urine secondary to pain. By the 10th February, 2006, she was complaining of significantly increased pain, bilateral leg symptoms and had reported having had difficulty passing urine over the previous three days. These symptoms, according to Mr. Coombs, warranted that an MRI scan be arranged on an urgent basis having regard to the risk that the plaintiff might be developing CES. Mr. Campbell took the 12th February, 2006, as the date upon which the plaintiff had what he described as a full house of red flags warning of the possible onset of CES. Accordingly, at the latest, the MRI should have been carried out by the 16th February, 2006. Mr. Illingworth advised that by the 12th February, 2006, the plaintiff’s doctors ought to have been concerned to rule out the potential development of acute CES and that the scan should have taken place at the latest on the 15th or the 16th February, 2006. He further advised that at all times during this period she should have been carefully monitored for the signs of evolving CES and that this had not occurred.
28. On the plaintiff’s behalf it was urged that the record keeping and the communication between the nursing and medical staff was deficient in that inadequate regard had been paid to the plaintiff’s ongoing urinary complaints and in particular her difficulties when passing urine on the 10th February, 2006, her apparent incontinence on the 11th February, 2006, and her symptoms of retention on the 11th and the 12th February, 2006. Likewise it was maintained that inadequate attention had been paid to her report on the 14th February, 2006, that she had not felt her bowel moving the previous day. Taking these factors into account and placing them against the plaintiff’s history of severe ongoing back pain, the results of the CT scan, the neurology found on examination, the plaintiff maintained that the MRI scan, which had been booked as a non-urgent investigation for the 20th February, 2006, should have been expedited. In particular, they advised that excessive emphasis had been placed upon the results of certain rectal examinations that had been carried out and concluded that having regard to her other symptoms the plaintiff should have been treated as a patient at risk of CES until imaging proved to the contrary.
29. The plaintiff’s experts maintained that it was wholly unacceptable that the plaintiff did not have her MRI scan until the 20th February, 2006. They told the Court that had there been any difficulty in procuring the hospital’s consent to the procedure or with the availability of an open scanning machine, as an alternative a myleogram or like investigation could have been carried out by an anaesthetist in the hospital to check on the extent to which her cauda equina might be compromised. They said it was their belief that any hospital with an open scanner, if advised of a patient with signs of evolving cauda equina syndrome, would likely be in a position to offer an emergency scan. Similarly, they believed that even if financial approval had to be obtained for such a scan that the same would always be forthcoming once the consultant stressed the seriousness of the condition under consideration.
30. In relation to her care after the MRI was obtained on the 20th February, 2006, the plaintiff’s experts roundly condemned the failure of Sligo General to ensure that the plaintiff was transferred to a specialist unit for assessment within 48 hours. They each gave evidence that her referral letter to the outpatient department of the Mater on the 28th February, 2006, was unacceptable having regard to the MRI films which had been returned with the patient to Sligo General on the 20th February, 2006. Mr. Campbell described the referral letter as “incredible” in the context of the plaintiff’s clinical history and presentation and referred to a number of inaccuracies in the letter. Assuming that the word “no” was omitted from the letter as governing the phrase concerning the presence or absence of CES features, Mr. Campbell said he would fail any student who did not make a diagnosis of CES based on the plaintiff’s symptoms as documented on the 21st February, 2006.
31. While the plaintiff’s symptoms were waxing and waning over this period of hospitalisation, surgical evaluation and decompression was, according to the plaintiff’s experts, mandatory. Overall, Mr. Coombs felt the patient should have been transferred to a spinal unit within 48 hours of the 12th February and operated on within 24 hours. Mr. Illingworth was of the view that if the plaintiff had had her MRI scan by the 15th or the 16th February, 2006, that she should have had her surgery by the 18th February, 2006. Mr. Campbell advised that having regard to the availability of the MRI films on the 20th February, 2006, that the plaintiff ought to have had a wide laminectomy on the 21st February, 2006, as at that stage she was developing CES.
32. In relation to this period of care, each of the plaintiff’s experts criticised as unacceptable the approach of the plaintiff’s doctors to her evolving condition and in particular condemned the fact that they appeared to rule out potential CES on the 14th February, 2006, based upon a rectal examination which revealed normal anal tone and for thereafter having failed to monitor her urinary and bowel sphincters for sensitivity and motor function.
33. The defendant’s experts told the Court that following the plaintiff’s admission to hospital on the 10th February, 2006, a full neurological examination was carried out and that there were no signs or symptoms at that stage to give rise to concerns regarding the potential onset on CES. She had no faecal or urinary incontinence. Her symptoms of severe back pain and decreased sensation in the left lower limb and over the dorsum of the foot were in keeping with what might be expected in the case of a lumbar disc prolapse. The reasonable assumption, given that on examination the plaintiff had normal anal tone and perianal sensation, was that the clinicians were dealing with an uncomplicated lumbar disc prolapse.
34. The Court was told that the plaintiff’s urinary and bladder difficulties, which included an incident of bed wetting and an episode of urinary retention, were adequately investigated and were not indicative of the onset of CES. Each of the defendant’s expert witnesses stressed that urinary retention was common for patients in severe back pain and there was no doubting from the drug regime prescribed for the plaintiff that she had unbearable back pain. Further, her retention was painful which demonstrated that there was no interference with the sacral nerves which are implicated in CES. The defendant’s experts explained the fact that the plaintiff’s urinary retention was temporary and that after her catheter was removed on the 13th February, 2006, that she had no further episode of retention and continued to void freely until her discharge on the 26th February, 2006. Prof. Bolger explained to the Court that this meant that she continued to have motor and sensory control over her bladder. He stated that the symptoms of CES are not intermittent and do not wax and wane. Accordingly, if the patient’s bladder or bowel had been compromised as a result of an evolving CES over the period when she was noted to have urinary and bowel difficulties between the 11th and the 13th February, 2006, the fact that these resolved meant they should not be considered symptomatic of CES. In this case the clinicians were entitled to assume the retention was an isolated event due to pain.
35. The defendant’s experts were satisfied that the plaintiff’s symptoms including her urinary symptoms and a complaint that she had not felt her bowel moving on the 13th February, 2006, had been fully addressed by the examinations carried out on the 14th February, 2006. In particular, Mr. Sherazi had carried out a full neurological examination in the course of which the plaintiff was noted to have normal anal tone, normal squeeze and normal perianal sensation thus evidencing no deterioration from her earlier examination on the 12th February, 2006. Mr. Grevitt told the Court that the numbness in the left buttock recorded in the course of this examination, whilst a new development, was not part of the profile of a patient with CES but was a standard sign of what might be expected in a patient with sciatica. It was not evidence of saddle anaesthesia.
36. Having regard to the fact that the patient had no further complaint regarding the function of her bowel and had no signs of ongoing retention after the neurological examination of the 14th February, 2006, there was no trigger to justify the carrying out of any further rectal examination. Rectal examinations, the Court was advised, were distressing and upsetting for patients and are not routinely carried out in the absence of some triggering event.
37. All of the defendant’s experts were agreed that an emergency MRI was not warranted during this period. However, in light of the fact that the patient was now a likely candidate for early surgical intervention, an early MRI scan was warranted with a view to obtaining relatively prompt specialist review. Mr. O’Rourke said that it was reasonable to have procured the MRI scan by the 20th February, 2006, having regard to the prevailing administrative difficulties, the need to obtain access to the only open MRI scanner in the country because of the plaintiff’s size and also having regard to her problems with claustrophobia.
38. Finally, the defendant’s experts concluded that it was reasonable, in the context of the findings on the MRI which was reported on the 22nd February, 2006, for those in charge of the plaintiff to have arranged for her to be reviewed by Mr. Synott at his spinal clinic in the Mater on the 28th February, 2006. They voiced no criticism of the content of the referral letter sent to the Mater with the patient or of the fact that the patient had been discharged home on the 26th February, 2006, following a period of pain management to await her outpatient appointment.
Conclusions
39. Prior to hearing the evidence of Mr. O’Rourke, Mr. Grevitt and Prof. Bolger, I have to say that I thought it would be difficult for the defendants, via their expert testimony, to convince me that those in charge of the plaintiff’s care when she was in Sligo General between the 10th and the 28th February, 2006, were not negligent in failing to ensure that:-
However, is all too easy with the benefit of hindsight to take a list of the most frequently presenting symptoms experienced by patients who go on to develop CES and then to assemble from the medical and nursing notes a list of all of the plaintiff’s symptoms over this period of her hospitalisation and jump to the conclusion that the care afforded to her by her clinicians fell short of the standard expected of them. The Court must do something quite different. It must consider the standard of care afforded to a plaintiff’s by assessing the appropriateness of any decision or alleged omission on a prospective basis taking into account her history up to that point including the significance to be attached to any improvement or deterioration in her presentation and the results of any tests available at the relevant time.
40. I am satisfied that when the plaintiff returned to Sligo General on the 10th February, 2006, having earlier discharged herself on the 7th February, 2006, with the history which is recorded in the clinical records that there was an obligation on those in charge of her care in Sligo General to conduct a full medical review of her condition. In this regard, I am satisfied from the evidence of Mr. Healy and the contents of the hospital records, that the plaintiff was fully assessed, bearing in mind the possibility that she might be developing CES. In the course of that examination the appropriate questions appear to have been asked of the plaintiff regarding her bladder and bowel function and inquiries made of her as to the presence of symptoms of perianal and/or vaginal numbness. Further, her history of having had difficulty passing urine for three days prior to her admission was clearly noted.
41. I accept the defendant’s evidence that based on the findings of the examination of the 10th February, 2006, that the plaintiff was appropriately managed when she was admitted for observation, bed rest and pain management pending the results of an open MRI examination that was to be arranged for her the following Monday. While the plaintiff was found to have had reduced bilateral straight leg raising (“SLR”), reduced power on the left side, a history of difficulty passing urine for several days and was clearly in very significant pain, all of which can be part of an evolving CES, I accept the defendant’s evidence that these clinical findings were much more likely to reflect a straight forward disc prolapse without compression of cauda equina and did not mandate emergency intervention by way of MRI or surgical referral having regard to the findings on rectal examination that she had normal sensation, anal wink and tone.
42. As to the plaintiff’s complaints that her condition deteriorated post her admission on the 10th February, 2006, such that by the 14th February, 2006, she had a full house of red flags warranting an emergency MRI scan and specialist review, I reject this submission. It is undoubtedly the case that the plaintiff had significant and worrying symptoms on the 11th February, 2006, when she had a palpable bladder as a result of urinary retention which was clearly established by the amount of urine which she passed following her catheterisation. She also appears to have unconsciously wet the bed, a further urinary symptom of concern vis a vis the possible onset of CES. I am satisfied from the evidence that had the plaintiff’s retention persisted then clearly an emergency MRI would have been warranted but the fact of the matter is that the plaintiff had no signs of ongoing retention beyond the 14th February, 2006, and this being the case it was appropriate for the plaintiff’s clinicians to ascribe her retention to pain and to conclude that her MRI scan was not required as a matter of emergency. I accept the defendant’s evidence that it was reasonable to arrange such a scan on a prompt basis. The reasonableness of that decision seems to be borne out by the fact that after the catheter was removed on the 13th February, 2006, the plaintiff appears, from the records, to have had relatively normal bladder function until the date of her discharge on the 26th February, 2006. Further, there are notes in the nursing records which demonstrate that the clinicians were monitoring the plaintiff’s ability to void and that she was using the bed pan, the commode and the toilet up to the date of her discharge without much difficulty. I recognise that there is a note of the 15th February, 2006, which indicates that the plaintiff expressed concern that when she had the urge to pass urine that she initially could not go and later would expel a large amount of urine. However, with the exception of this note there is no further evidence of retention. In this regard, I should state that I do not accept the plaintiff’s assertion that a catheter should have been passed after this initial episode of painful retention to ensure that her position had resolved in light of the evidence as to her bladder function. I do not believe that it would have been standard practice to have done so.
43. It was clearly the obligation of the plaintiff’s clinicians to monitor her urinary symptoms and urinary function because of the potential risk of CES and I am satisfied that they complied with their responsibility in this regard. The medical records for the 12th February, 2006, demonstrate that Dr. Ahmed advised that the plaintiff should be catheterised because of her retention. Further, the nursing note of the 13th February, 2006, records that “the team” advised the patient that the catheter had to be removed. It is clear that the medical team looking after the plaintiff were aware of her difficulties regarding retention and that the nursing staff kept the medical staff appraised of any ongoing difficulties.
44. I accept the plaintiff’s expert evidence that her complaint on the 14th February, 2006, made to the orthopaedic registrar that she had not felt her bowel moving the previous day, in the context of all of her other symptoms, was such that her clinicians ought to have been concerned that this could be a sign of the possible onset of CES. In this context, I am satisfied from a review of the medical records for the 14th February, 2006, that the possibility of CES was at the forefront of the minds of those charged with the plaintiff’s care. The opening line of the physiotherapist’s note, which immediately precedes that of Mr. Sherazi for the 14th February, 2006, refers to “query S4 symptoms”, S4 being the level of the sacral spine material to the nerves which supply sensation to the saddle area. It is clear from the content of this note and that of the nursing staff of 19.30 hrs, where it is noted “no evidence of cauda equina as per Mr. Sherazi”, that due consideration had been given in the course of the day to the need to question the possibility that the patient might be demonstrating symptoms of CES.
45. I am satisfied that the appropriate response to the plaintiff’s symptoms as of the 14th February, 2006, was for her clinicians to carry out a full neurological examination. I also accept the evidence of the defendants that the findings of that examination were not such as to warrant the MRI scan, which at that stage had been booked for the 20th February, 2006, to be expedited on an emergency basis. In relation to the significance of the findings of this examination, I prefer the evidence of the defendant’s experts. While the plaintiff clearly was experiencing significant pain to the point that she was unable to stand up or mobilise, I accept the defendant’s evidence that there is no correlation between pain and the risk of compression to the cauda equina and that patients with a disc prolapse will experience widely varying degrees of pain. The new complaint of numbness in the left buttock, I accept was not significant as it is a common symptom of sciatica caused by disc prolapse and is not evidence of saddle anaesthesia. The finding as to the slightly reduced power in the left leg was no different to that which the plaintiff had had since her first visit to Sligo General in December, 2006 and somewhat confusingly she had reduced sensation on the left side at dermatomes above those which were of relevance when considering cauda equina syndrome i.e. L2 – L4. In particular, I accept the evidence of the defendant’s experts that the fact that the patient had normal anal tone, normal squeeze and normal perianal sensation ruled her out as a patient who needed to be treated as a medical emergency in terms of either investigation or specialist review.
46. I reject the evidence of the plaintiff’s experts that, regardless of the examination of Mr. Sherazi of the 14th February, 2006, that the plaintiff should have been treated as if she had CESI until such a time as this was disproved by MRI scan and/or specialist review. On this issue, I prefer the defendant’s evidence to the effect that it would simply be impossible to operate a medical system if every patient with symptoms and findings akin to those of the plaintiff on the 14th February, 2006, had to be treated as if they had CESI mandating the procurement of an emergency MRI scan and/or immediate specialist review. I am satisfied that the defendant followed what was a generally approved practice at the time of ensuring that the patient, who by now was a likely candidate for surgery, would have a relatively prompt MRI scan followed by specialist review.
47. My only concern regarding the examination carried out by Mr. Sherazi is that it is not clear whether or not at the time of his examination he was made aware of the fact that the patient had involuntarily urinated in the bed on the 11th February, 2006. However, even if he had been made aware of this fact, I do not believe that his knowledge of the same would have warranted him altering his management of the plaintiff. He clearly inquired of the plaintiff as to whether she had any symptoms of bowel or bladder incontinence as of the 14th February, 2006, and she replied in the negative. Further, the catheter had been removed the previous day and she was noted to have been using the bed pan on request.
48. In the light of the fact that an MRI scan was arranged for the plaintiff for the 20th February, 2006, I accept the defendant’s evidence that the patient’s management as between the 14th February, 2006, and the date of her MRI examination was acceptable. It is clear from the clinical and nursing records that the plaintiff’s bladder function was being carefully monitored and from a bowel perspective there is no suggestion that she had any recurrence of the feelings she had expressed on the 14th February, 2006, regarding a lack of sensation on the movement of her bowel the previous day. The plaintiff appears to have been kept under close medical review by the orthopaedic team and nothing happened over this period which would suggest that her condition had deteriorated. The objective findings on examination remained the same; she had an improvement in the irritability of the nerve root on the left side and improved straight leg raising on the 17th February, 2006. Also, the plaintiff experienced an improvement in her overall level of pain with the introduction of neurontin. The numbness in her buttock remained but I am satisfied that this was not a sinister finding in the context of CES.
49. In respect of the period between the 14th and 20th February, 2006, I accept the defendant’s evidence that having regard to the plaintiff’s symptoms there was no basis for carrying out any further rectal examination. I am satisfied that examinations of this nature are distressing for the patient and are only carried out if triggered by some unusual or worrying finding such as ongoing or worsening sphincteric disturbance. I also accept the defendant’s evidence that after the examination of the 14th February, 2006, it was unnecessary to pass a catheter after the plaintiff had urinated in order to establish whether or not she was in urinary retention. I am satisfied that if her retention on the 12th February, 2006, had been due to the presence of compression to the sacral nerves, as would occur in CES, then those nerves would not have subsequently recovered and that she would have gone back into retention after the catheter had been removed. It is clear from the records that this did not occur.
50. As to the manner in which the patient was treated between the 21st and the 28th February, 2006, I am also satisfied that the plaintiff has not established negligence on the part of Sligo General over this period. It may well be the case that in circumstances where the original MRI films came back to Sligo General with the patient on the 20th February, 2006, and these showed the presence of a large central disc that a more urgent approach to the plaintiff’s might have been preferable. However, I accept the defendant’s evidence that the arrangement made by Sligo General whereby immediate contact was made with the Mater and an appointment made to have the patient seen on the 28th February, 2006, was well within what was acceptable practice for a patient with the plaintiff’s condition and history. Notwithstanding the criticisms made by the plaintiff’s experts I am satisfied that it was reasonable to keep the patient in Sligo and to treat her pain with an epidural and to discharge her home on the 26th February, 2006, with an appointment to attend at Mr. Synott’s clinic on the 28th February, 2006. As a matter of fact I accept the defendant’s evidence that over that period the patient did not demonstrate any deterioration in her condition which would be significant from a cauda equina point of view. She had no obvious signs of retention, be it painful or otherwise, and had no event which might suggest that the nerves supplying the bowel were compromised by compression. Indeed, the plaintiff appeared to get some benefit from the epidural, albeit that it was temporary and that there was disagreement between the respective experts as to the appropriateness of this type of treatment.
51. While there was much criticism by the plaintiff’s experts about the referral letter sent to the Mater by Mr. Khan, Orthopaedic Registrar on the 21st February, 2006. I believe that that letter had no impact on the patient’s subsequent management even if I was to take the view, which I do not, that it was inaccurate in any material respect. The letter may have been relevantly minimalist in its content but I don’t believe there was an obligation to set out the entirety of the plaintiff’s varying symptoms over this period of her hospitalisation. By the time the letter was sent the appointment for the patient to be seen on the 28th February, 2006, had already been made. Also, Mr. Synott told the Court that he would not be influenced by the content of a referral letter when deciding if and on what basis a patient required surgery. In making that decision he would rely principally on the MRI scan, the findings on clinical examination and the history and symptoms as outlined by the patient. In relation to this letter the parties agreed that it had been the writer’s intention to state that the patient had no CES symptoms. This being so, I accept Mr. Grevitt’s evidence and that of Prof. Bolger that at the time the letter was written the plaintiff had only one of the three pillars of CES namely the presence of a large disc and that the letter was accurate vis a vis the plaintiff’s condition at the time it was written.
52. Lastly, because I am satisfied that the urgency contended for by the plaintiff over this period of time did not exist, I do not feel it is necessary for me to consider the allegation concerning the failure on the part of the clinicians in Sligo General to arrange for a myleogram to be carried out on the plaintiff in circumstances where the only MRI scan suitable to the plaintiff’s needs was in Dublin.
28th February – 3rd March, 2006
53. Mr. Coombs, Mr. Campbell and Prof. Illingworth each gave evidence that in their opinion, the failure on the part of the Mater to ensure that the plaintiff had surgical intervention as a matter of grave urgency following her assessment on the 28th February, 2006, fell short of the standard of care to be expected in what is the national spinal unit. Having regard to the patient’s clinical history, her MRI scan and the physical findings on examination, they were all agreed that barring an emergency case of greater importance to that of the plaintiff, she should have been operated upon within 24 hours. Having had sight of the operating lists for the 1st, 2nd and 3rd March, 2006, the plaintiff’s experts were almost ad idem in concluding that her surgery was not given the priority which it should have been afforded having regard to the other scheduled surgical procedures over that period. With the exception of possibly two other cases, the balance of the surgery carried out over this period appeared to be of an elective nature and they each felt there was no justification for the plaintiff’s surgery being postponed beyond the 1st March, 2006.
54. On the defendant’s behalf Mr. O’Rourke Mr. Grevitt and Prof. Bolger were all of the opinion that when the plaintiff was first seen at the Mater on the 28th February, 2006, she did not have symptoms sufficiently acute to mandate emergency surgical decompression even if Mr. Grevitt was of the opinion that the patient had symptoms suggestive of CESI. However, they accepted that she required relatively urgent surgery. Having regard to the plaintiff’s apparently relatively stable clinical profile over the 1st and the 2nd March, 2006, they felt that there was no unacceptable delay in the surgery which was ultimately performed on the evening of the 3rd March, 2006. The defendant’s experts accepted that the plaintiff’s condition deteriorated on the 2nd March, 2006, when her rectal tone was noted to be decreased. At that stage, they were agreed that the plaintiff required urgent surgical intervention which she duly received the following day.
Conclusion
55. In coming to my conclusions on the standard of care afforded to the plaintiff over this period I considered carefully all of the expert evidence and also that of Mr. Synott who I have to say impressed me as a witness. I believe he made every effort to give a straightforward account of the care which she had received when in the spinal unit of the Mater. He did not feign a recollection of his engagement with the plaintiff but gave his evidence relying principally on the entries in the hospital chart and what his standard practice was at the time.
56. I accept Mr. Synott’s evidence and that of Mr. Grevitt, Mr. O’Rourke and Prof. Bolger that the plaintiff did not require emergency surgery following her admission on the 28th February, 2006, but that she did require relatively urgent surgical intervention because she had signs which indicated that she was at risk of acute CES and also for humanitarian reasons given that she was experiencing ongoing significant pain. I accept Mr. Synott’s evidence that if, on the day of her admission to the Mater, she had had evidence of loss of anal tone and was incontinent that he would have operated that evening.
57. Having considered the evidence as to the plaintiff’s condition between the 28th February, 2006, and the 2nd March, 2006, the difficulty in getting urgent cases into operating lists and the risks that pertain to emergency out of hours surgery, I accept the defendant’s evidence that it was reasonable to plan to operate on the day following her admission at the end of Mr. Poynton’s list, if theatre time was available. Mr. Synott told the Court that his routine surgery list was on a Monday and Mr. Poynton had the theatre every Wednesday. Prof. McCormack and Prof. Stephens had the theatre on a Thursday, i.e. the 2nd March, 2006. I accept Mr. Synott’s evidence that merely because a patient is put on an emergency list does not mean that the surgeon believes that they need emergency surgery. It is just that if they are not put on such a list there is little chance of them getting to theatre. If they are not on the urgent list they will not be seen by the anaesthetist; then if a slot becomes available in theatre and that assessment has not taken place, the operation will not proceed. Hence, it is easier and in the best interests of the patient that their name be put on the emergency list even if it is considered unlikely that there will be time available for that surgery within the schedule for the day. It is easier to put the patient on a list and then take them off than to try to get them on in the event of a space becoming available.
58. I am satisfied from Mr. Synott’s evidence that he saw the plaintiff at 17.00 hrs on Wednesday, the 1st March, 2006, and that it had become impracticable to operate on her that day because of the length of Mr. Poynton’s list. I accept his evidence that he had been in his outpatient clinic that afternoon and if time had become available he would have carried out the plaintiff’s surgery that day. I am also satisfied that having seen the patient, he was of the opinion that she had not deteriorated and it was reasonable therefore to postpone her surgery. I accept that in circumstances where it became impracticable, for a range of considerations, to operate as planned on the 1st March, 2006, that it was reasonable in the first instance to postpone her surgery until the following day and later until the 3rd March, 2006, because of another emergency case which required theatre space on the 2nd March, 2006. Further, it appears to me from the medical records that during this period the plaintiff was closely monitored such that when her condition deteriorated on the 2nd March, 2006, when her anal tone was found to be decreased, she was operated upon as an emergency the following evening.
59. Having regard to all of the aforementioned circumstances I cannot find the defendants negligent in respect of their management of the patient between the 28th February, 2006, and the 3rd March, 2006.
The Surgery Performed by Mr. Synott
60. Mr. Coombs, Mr. Campbell and Prof. Illingworth told the Court that the surgical approach adopted by Mr. Synott, namely a hemilaminectomy in the course of which a small part of the left lamina was removed, was unacceptable having regard to the presence of a large central disc and CES. What was required was a wide laminectomy, a procedure which involves the removal of the spinous process and both laminae. These structures were described by various witnesses as being a bit like a chimney (the spinous process) with two adjacent roofs (the laminae) wherein the attic houses the cauda equina. In cases of CES, the cauda equina is forced upwards in the attic space against the roof and chimney by a big protrusion (the sequestered disc) pushing up from below. The plaintiff’s experts told the Court that the field of vision required by a surgeon to ensure, firstly the removal of the entirety of the disc and secondly the complete decompression of the cauda equina, mandates the removal of all these structures. They stated that the surgical approach adopted by Mr. Synott was substandard in that the procedure he adopted involved only the creation of a small window in the left lamina making it unlikely that he could achieve these objectives. Mr. Campbell told the Court that if you try to remove a large sequestered disc by this method you risk damaging the nerves while trying to pull them back to access the disc and haul it out through a limited space. While Mr. Campbell did not say it was impossible to remove a large central disc using a unilateral approach without removing the spinous process he stated that a wide laminectomy was warranted to ensure that the appropriate decompression was achieved. Mr. Illingworth stressed that there is no access to the right side of the cauda equina using the method adopted by Mr. Synott and that he could not therefore have satisfied himself that he had fully decompressed the dura on the right side. The plaintiff’s experts supported their opinion on this issue by referring to the fact that Mr. Synott, when he operated on the plaintiff for the second time on the 17th March, 2006, had, they believed, performed a laminectomy. They also relied upon an article published in 2000 and authored by Scott Shapiro M.D. which analysed 44 cases of cauda equina syndrome in which all but one patient had been operated upon by way of a laminectomy.
61. The plaintiff’s experts also advised the Court that in their opinion, the surgery which Mr. Synott had carried out fell short of the required standard in that he allegedly did not remove the entirety of the prolapsed disc which would have been easily visualised had he carried out a laminectomy. The consequences of his failure to remove the entirety of the sequestered disc was that residual disc material was left in the spinal canal where it continued to compress the nerves supplying the bowel and bladder and ultimately caused the acute symptoms which were present when the plaintiff represented to Sligo General on the 12th March, 2006.
62. The plaintiff’s experts were all agreed that Mr. Synott had removed some disc material but probably only that part of the disc that was encroaching upon the nerve root on the left side. They relied upon the operation note in respect of her subsequent surgery of the 17th March, 2006, which refers to the fact that a “residual fragment” was removed, the report of the consultant radiologist in relation to the findings of the MRI scan carried out on the 16th March, 2006, the plaintiff’s postoperative medical records and her discharge summary dated the 3rd April, 2006, in support of this proposition. The plaintiff also relied upon the operation note of the 17th March, 2006, which referred to the retrieval of a “residual extruded disc fragment” but made no mention of the possibility that the plaintiff had experience a recurrent disc prolapse.
63. Mr. Campbell, in particular, felt that Mr. Synott had not been anywhere near the central disc and that he had merely incised the annulus and taken out a bit of degenerative disc material sitting on the L4/5 nerve. Indeed the thrust of the plaintiff’s expert evidence was that, having regard to the surgical technique deployed and the content of the operation note, Mr. Synott did not appear to have been focused upon the fact that his patient was suffering from CES as a result of a large central disc but was somehow lulled into believing that he was operating on a patient with a standard disc prolapse compromising the left nerve root at L4/5.
64. The plaintiff’s experts stated that it was impossible to construe the plaintiff’s medical records over the postoperative period as evidence supporting Mr. Synott’s contention that he had managed to remove all of the disc material which had been compressing the cauda equina. They referred to the fact that the plaintiff had some postoperative urinary retention, bowel disturbance as well as significant ongoing pain and reduced muscle power. Insofar as the defendants sought to rely upon the plaintiff’s improved left leg function, they stated that such improvement was to be expected given that disc material which had been pressing upon the left nerve root had been removed during the surgery. It was, in their opinion, the quantity of opiates that the patient was taking and her desire to feel better plus the fact that Mr. Synott had shaved the disc sitting on the L4/5 nerve root that was responsible for any recovery noted.
65. The plaintiff’s experts also refuted the defendant’s contention that the plaintiff had experienced a further disc prolapse following her discharge from the Mater by relying upon the statistical unlikelihood of such an occurrence. They also relied upon the fact that there appeared to be no loss of disc height evident on the MRI scan of the 16th March, 2006, as might have been expected had there been a further disc prolapse. They emphasised the fact that what was seen on that MRI scan was described as being a large prolapse which they felt was unlikely to be a recurrence given that disc material had already extruded from this level previously in 1994 as well as prior to the 3rd March, 2006, making it unlikely that there would be sufficient material left to account for what was seen on the MRI of the 16th March, 2006.
66. On the defendant’s behalf, Mr. O’Rourke, Mr. Grevitt and Prof. Bolger told the Court that as of 2006, the approach adopted by Mr. Synott to the plaintiff’s surgery was entirely appropriate having regard to the preoperative findings. A laminectomy, as advised by the plaintiff’s experts, was not a mandatory approach to a central disc prolapse in the presence of CES. The majority of orthopaedic surgeons in 2005, were, they said, performing the same procedure as that which had been adopted by Mr. Synott, namely a hemilaminectomy in which a portion of the lamina on one side of the spinous process is removed. It was, they said, undesirable to remove the spinous process unless absolutely necessary as to do radical surgery of that nature had long term implications for the stability and function of the patient’s spine. Mr. Grevitt and Mr. O’Rourke explained that it is possible to extend the hemilaminectomy procedure at any stage by removing a greater part of the lamina if the initial window created proves insufficient to effect a complete removal of a disc or decompression of the dura of the spinal cord. Indeed, in the course of his own evidence, Mr. Synott, using a model of the spine and its relevant structures, demonstrated how the bone from the relevant lamina can be surgically clipped away until adequate visualisation and access is obtained such that the central disc can be removed and the epidural space decompressed with relative ease.
67. As for the plaintiff’s assertion that Mr. Synott did not remove the entirety of the offending central disc and failed to fully decompress the dura, the defendant’s experts said that there was simply no proof that he had failed in this regard. Mr. O’Rourke said that it is relatively easy for a surgeon, by probing the dura and visualising its position, to satisfy himself that it has been fully decompressed in that once the disc is removed the dura settles back down into its normal position and is no longer to be seen jammed upwards into the spinal process where it would have been when the surgery commenced. He was satisfied from the operation note that the reference to the surgeon having decompressed the “space” was a reference to the epidural space.
68. In relation to the surgical approach adopted by Mr. Synott the defendant’s experts relied upon an article concerning the treatment of CES by surgical decompression authored by Messrs. Qureshi and Sell, published in 2007 which referred to the varied approach adopted by a number of surgeons when faced with a need to decompress the cauda equina in a case of CES. They were of the view that the evidence of the plaintiff’s experts that a laminectomy was mandatory was somewhat out of date. Each of them said that they had been trained to use the hemilaminectomy approach in such cases, that in practise they had used this technique and were aware that other surgeons of equivalent skill did likewise in similar circumstances.
69. The defendants’ experts all stated that it was not possible, from an evaluation of the MRI scan of the 16th March, 2006, to tell whether the disc material seen in the spinal canal was a fragment of the disc seen in the earlier MRI scan or whether it was new disc material as a result of a further prolapse at the same level. Further, they confirmed that from a visual inspection of what was removed on the 17th March, 2006, it would likewise be impossible to state whether that disc material had been present on the 3rd March, 2006, or whether it was new material. Hence the reference to a “residual fragment” in the operation note of the 17th March, 2006, or the radiologist’s report of the 16th March, 2006, referring to a recurrence was immaterial. The fact that there was no apparent alteration or loss of disc height at the L4/5 level demonstrated on the MRI of 16th March, the defendant’s experts maintained, was irrelevant as changes of that nature take a significant period to manifest after a prolapse. Also, while relapse is relatively infrequent, the annulus which encases the disc is torn in the course of a prolapse and notwithstanding a surgeon’s best efforts when removing a prolapsed disc to ensure that there is no further loose material left behind within the annulus, further disc material can come through that opening. Mr. O’Rourke stated that the risk of a recurrence was at its highest in the weeks following surgery and hence the advice given to patients to curtail prolonged sitting in the weeks following surgery.
70. Mr. Grevitt, Mr. O’Rourke and Prof. Bolger were satisfied from the plaintiff’s clinical progress post the surgery of the 3rd March, 2006, that Mr. Synott had removed the entirety of the offending central disc and had fully decompressed the epidural space. They relied upon the plaintiff’s postoperative ASIA scores in respect of the motor and sensory function of the S2 – S5 nerves, these being the nerve roots relevant to the area compromised by CES. They also referred to the presence of anal tone postoperatively from which it could be inferred that the plaintiff had returned to relatively normal neurological status. This was to be contrasted with the complete change in her clinical and in particular her neurological presentation when seen at Sligo General on the 12th March, 2006.
Conclusion
71. I am satisfied from the evidence of Mr. O’Rourke, Mr. Grevitt and Mr. Bolger that as of 2006 there was certainly a reputable body of surgeons who, when faced with an evolving CES or indeed an acute CES caused by a large central disc prolapse, would elect to remove the disc and decompress the cauda equina by carrying out a laminotomy, discectomy or hemilaminectomy procedure. I accept their evidence that this is an entirely acceptable method of extracting a disc of the nature seen on the MRI scan of the 20th February, 2006. I accept Mr. Synott’s evidence and that of the defendant’s experts that a surgeon taking this approach can continue to remove additional bone from the relevant lamina until such a time as they have adequate access and visualisation of the area concerned. In this regard it was clear from the MRI scan on the 16th March, 2006, that Mr. Synott had made an opening in the left lamina to allow him access the prolapsed disc and to decompress the relevant nerve roots and the epidural space.
72. Insofar as the plaintiff’s experts relied upon the paper by Shapiro et al which contends that a laminectomy is the only acceptable approach for a surgeon faced with a large central disc prolapse and evolving CES and specifically advised against hemilaminectomy, I am satisfied that that paper was a review of historic cases and that surgical techniques for dealing with discs of this nature had become more advanced by the time Mr. Synott operated upon the plaintiff. Indeed the article by Qureshi and Sell (2007), which reviewed a historic cohort of 33 patients with CES, referred to the varied approach of surgeons when faced with the need to decompress the cauda equina. In eighteen cases a laminectomy was performed, six patients were operated upon by surgeons using the hemilaminectomy procedure and in the remaining fifteen cases the even less aggressive interlaminar discectomy was deployed. It is in my view impossible in the light of this article when taken with the defendant’s expert evidence as to their own practice to contend that Mr. Synott’s surgical approach by hemilaminectomy constituted a departure from an accepted and approved practice or was otherwise neglectful of his obligations to the plaintiff.
73. I accept Prof. Bolger’s evidence that he deals with a number of CES discectomies every year and that he has never used the laminectomy procedure for such purpose. Likewise, I accept the evidence of Mr. Grevitt and Mr. O’Rourke that for such cases the laminectomy is now considered a slightly outdated method of dealing with CES. That is not to conclude that to adopt the laminectomy procedure would be unacceptable or that laminectomy does not have its place within surgery. Prof. Bolger told the Court that it is regularly used when a tumour needs to be removed or if for some reason a more aggressive type of surgery is required.
74. It probably should be clarified that when Mr. Synott operated upon the plaintiff on the 17th March, 2006, he did not, as the plaintiff’s experts had initially believed, carried out a wide laminectomy. He did not in fact remove the spinous process but carried out bilateral laminotomies. When questioned as to why he undertook this apparently more radically type of surgical approach on this occasion, he told the Court he did so in order to try to avoid the scar tissue from the earlier surgery. He said that scar tissue tethers the dural sac and makes it less mobile. Hence it made sense to enter on both sides gives him better vision, something he did not need to do in the course of the original surgery.
75. As to the plaintiff’s contention that Mr. Synott performed substandard surgery in that he allegedly failed to remove the entirety of the large central disc or fully decompress the epidural space in the course of the surgery of the 3rd March, 2006, I reject both such assertions. I do not accept the evidence of Mr. Campbell to the effect that all Mr. Synott did was to shave off some small portion of disc material interfering with the L4/5 nerve root or that of the other experts that he seemed, from the operation note, oblivious to the fact that the plaintiff had CES and a large central disc. This was an operation that was conducted by Mr. Synott late on a Friday evening in circumstances where the plaintiff’s condition was known to have deteriorated over the previous 24 hours. It is therefore highly unlikely, I believe, that he somehow was confused or lost sight of the importance of fully removing all disc material that was in the spinal canal and fully decompressing the dura. I also accept his evidence that he would have conducted the surgery with the benefit of the MRI scan of the 20th February, 2006, and would therefore have been fully appraised of the significance of the large sequestered disc which is referred to in the operation note.
76. On the balance of probabilities, I am satisfied that Mr. Synott removed the entirety of the large central sequestered disc in the course of surgery. The fact that the operation note refers to a “large disc” having been identified and removed, I believe supports the defendant’s evidence that the disc probably came out in one piece. I am also satisfied that Mr. Synott would have been conscious of the size of disc material which he was seeking to retrieve having regard to the fact that he carried out the surgical procedure with particular reference to the MRI scan. Also, had the disc not come out in one piece, I accept his evidence that the operation note would probably have recorded the fact that the material had been removed “piecemeal”. Further, I am also satisfied that Mr. Synott in all probability not only freed the left nerve root at L4/5 but also fully decompressed the epidural space. The reference in the operation note to the “space” being decompressed, I believe, was intended to refer to the epidural space even though the word epidural does not appear in the note. I am satisfied that Mr. Synott having come in to do this emergency surgery late on a Friday evening was well aware of the fact that the patient had CES at that point and that as a matter of course, he would have attended to the decompression of the epidural space without which the surgery was bound to fail.
77. In coming to the aforementioned conclusion I have had regard to the fact that the operation note of the 17th March, 2006, refers to the presence of a residual fragment in the canal and that the report of the MRI scan of the 16th March, 2006, also refers to the presence of a residual disc. However, there are a number of things to say about this record. Firstly, the operation note was not written by Mr. Synott himself and I accept his evidence in this regard. Secondly, a surgeon removing a disc fragment cannot tell from its appearance or texture whether or not it was expelled from the annulus only days as opposed to weeks previously. Thus, the note which purports to describe what has been removed as “central residual extruded disc fragment” to my mind is of little evidential value. Indeed this latter operation note is also inaccurate insofar as it suggests that Mr. Synott excised the spinous process at L4 in the course of the surgery on the 17th March, 2006, which is incorrect as is seen on the MRI scan of the 16th March, 2006.
78. I have also considered the evidence adduced on the plaintiff’s behalf which relied upon the patient’s symptoms between the 3rd and the 17th March, 2006, as evidence of ongoing compression on the spinal cord due to the alleged failure on the part of Mr. Synott to entirely remove the offending disc in the course of the first surgical procedure. However, I accept the evidence of Mr. Grevitt that the plaintiff’s ASIA scores over the postoperative period are only consistent with Mr. Synott having achieved a complete decompression of the epidural space. The sacral nerves were noted by a number of different clinicians as functioning normally at this time. The scores for the 6th March, 2006, show full motor function of the long toe extensors at L5 and normal sensation at the S1 dermatome, results which suggest that the epidural space had been decompressed. Further, sensory findings on the 7th March, 2006, at the S1 level were normal and anal contraction, which had been reduced on the 2nd March, 2006, was noted as being present again. Also, the S2, 3 and 4 nerve roots which are responsible for sphincter control were also normal. In these circumstances I believe there is good relatively objective evidence that Mr. Synott removed the entirety of the large central disc which had earlier been compromising the cauda equina and that he decompressed the epidural space.
79. In coming to my conclusion on this issue I have taken into account the fact that the plaintiff was apparently urinating normally with control of the bladder over the postoperative period with the exception of one episode of postoperative retention immediately after surgery. Further, while the plaintiff was noted to have had diarrhoea on one occasion this appears to have been a once off event unrelated to any issue regarding the control of her anal sphincter.
80. In respect of this issue I also accept Mr. Grevitt’s opinion that a surgeon of Mr. Synott’s experience is most unlikely to have left behind a large disc fragment of the nature seen on the MRI of the 16th March, 2006, and that whilst recurrent disc prolapses only occur in about 10% of cases, according to Mr. O’Rourke, I accept the defendant’s evidence that such an event most commonly occurs in the immediate postoperative period. Having regard to Mr. Synott’s evidence and that of Mr. O’Rourke, Mr. Grevitt and Mr. Bolger, I am satisfied that the surgery carried out by Mr. Synott on the 3rd March, 2006 was entirely appropriate having regard to the patient’s clinical history and the objective findings on MRI scanning.
81. Having reached these conclusions, it follows that I accept that the plaintiff, following her discharge from the Mater on the 8th March, 2006, was one of the small percentage of patients who proceeded to have a relapse and that further disc material prolapsed into the spinal canal through the hole in the annulus and that it was this prolapse that caused the onset of the acute symptoms with which she presented on the 12th March, 2006, to Sligo General.
Last Period of Hospitalisation 10th -26th February
12th – 17th March, 2006
82. It is worth briefly recalling in skeletal form what occurred from the 12th to the 17th March, 2006 when the patient was operated on for the second time.. The plaintiff first attended the Westdoc clinic on Sunday the 12th March, 2006. There she gave a one day history of faecal incontinence and this information was later relayed to Sligo General in a referral letter which requested that she have an urgent assessment. She attended Sligo Accident and Emergency Department later that evening where she was examined by the orthopaedic senior house officer (“SHO”) and later the orthopaedic Registrar, Mr. Sherazi.
83. The plaintiff’s wound was oozing, she was unable to empty her bladder completely and was experiencing a sensation of numbness on passing urine. She reported significant urgency on passing her bowel motions and complained of having soiled herself twice. The plaintiff also reported experiencing pins and needles with a loss of sensation over her left buttock and left leg. On examination, she had reduced power and decreased ankle jerk on the left side and as regards sensation she had numbness throughout all dermatomes. Examination also revealed decreased sensation at the left perianal skin but the plaintiff was noted as able to squeeze the sphincter and her anal tone was found to be present. The impression noted by the clinician was that there was “no obvious cauda equina syndrome – disc prolapse L5/S1 root compression”.
84. From the records, it appears that late on the evening of the 12th March, 2006, or perhaps shortly after midnight, Mr. Sherazi made telephone contact with the orthopaedic registrar on call in the Mater, Mr. Dan Canya. It seems that Mr. Canya, presumably based upon the communication to him of most of the findings referred to above, expressed himself unconcerned about the plaintiff’s condition and concluded that she had no new symptoms beyond those which she had experienced postoperatively when in the Mater. He advised that they were not keen for the patient to be transferred back to the Mater and that she should be kept in Sligo General on bed rest and sent to Mr. Synott’s clinic on Tuesday the 14th March, 2006. While the note recording the exchange between the two clinicians makes reference to the difficulty of scanning the plaintiff, it makes no mention of the need for an urgent MRI scan or as to the advisability of trying to obtain such a scan for the plaintiff in the intervening period.
85. On Tuesday the 14th March, 2006, the plaintiff was seen at the Mater at which time she was suffering from painful retention and was catheterised. She had an ooze from her surgical wound and a swab was taken for culture. On examination she was found to have normal anal tone but reduced perianal sensation. The note records a query regarding “faecal incontinence (watery)”. The clinicians felt an MRI was warranted and the plaintiff was sent back to Sligo General with a request that this be arranged after which she would be reviewed in the Mater. The following day Sligo General made arrangements for the MRI to be carried out in the Beacon Private Hospital (“the Beacon”) on the 16th March, 2006, after which she was taken back to the Mater for further evaluation. The scan showed that the Cauda equina was compromised due to the presence of disc material at the L4/5 level. On admission on the 16th March, 2006, the plaintiff was recorded as having significant urinary difficulties with voiding, dysuria, retention and incontinence. In relation to her bowel dysfunction she was noted to be moving only small amounts but had increased incontinence in that four such episodes were recorded. On examination the plaintiff was noted to have numbness in the perineal area. She was reviewed by Mr. Synott at 19.10 hrs and he directed that she be put on a fasting regime for surgery which was carried out the following day.
Pleadings
86. The pleadings, insofar as they deal with this period, go some way to explaining why a number of the experts gave little or no evidence as to the standard of care afforded to the plaintiff at this time. As initially drafted they focused principally on the events that occurred up to and including the 3rd March, 2006, with significant emphasis being placed on the allegation that Mr. Synott had failed to remove the offending central disc in the course of surgery. In particular, it was asserted that it was the negligence of the defendants over that earlier period that caused the plaintiff to represent to Sligo General on the 12th March, 2006, in such distress. It was only by way of additional particulars delivered in February, 2012 that the defendant’s care over this period was first called into question. The pleadings also probably explain why there is scant reference to the plaintiff’s treatment and condition over this period in those expert reports which were furnished to the Court on the plaintiff’s behalf in the course of the hearing. Indeed, from the manner in which the evidence was adduced, I feel it is likely that the plaintiff’s experts, with the exception of Mr. Campbell, were so convinced of the strength of the case to be made in respect of the plaintiff’s care up to and including the time of her first operation on the 3rd March, 2006, that they never engaged upon a consideration of whether or not the defendant’s could be faulted if the Court were to come to the conclusion that her management over that period had not been negligent.
The Expert Evidence
87. Mr. Coombs gave very limited evidence in relation to any unacceptable lapse of time between the plaintiff’s presentation to Sligo General on the 12th March, 2006, and her second surgery at the Mater on the 17th March, 2006. This was possibly due to the fact that in his expert report he had confined his criticism to what he considered to be the cause of the plaintiff’s injuries, namely, an unacceptable delay in relation to her referral to the specialist unit of the Mater in February, 2006, the postponement of surgery until the 3rd March, 2006, and the alleged failure on the part of Mr. Synott to remove the entirety of the offending disc in the course of surgery. He nonetheless stated in the course of evidence that he felt that the traditional rectal examination, which had been carried out on the plaintiff following her readmission to Sligo General on the 12th March, 2006, with a history of two episodes of faecal soiling, might have lulled the clinicians into a false sense of security. He described the test as one which is very subjective and therefore not particularly helpful. He also said that the absence of obvious incontinence was not a reliable marker for ruling out CES as opiates make people constipated and the plaintiff was taking this type of medication. Further, the fact that the plaintiff was overweight, in his opinion, made the test to establish anal tone more difficult. In such circumstances he would have wanted to rely upon more objective signs of CES such as imaging, the presence or absence of urinary retention and/or perianal numbness.
88. Mr. Campbell advised the Court that on her readmission to Sligo General on the 12th March, 2006, he believed that the plaintiff still had a bladder that was potentially saveable and that it was inexplicable that the attending clinician had concluded that she had no obvious signs of CES. He referred to the fact that the plaintiff had faecal incontinence, disturbed perianal sensation, had required catheterisation because of retention and had weakness and sensory changes. Mr. Campbell felt that the findings in the medical and nursing notes established that the plaintiff had CES on the 12th March, 2006, probably due to a retained fragment, and that she should have had an emergency MRI the following day i.e. Monday the 13th March, 2006, and surgical decompression within hours. By the time she had surgery on the 17th March, 2006, Mr. Campbell felt that the “horse had bolted” and as a result the plaintiff had gone on to develop a neurogenic bladder which was present at the time she was discharged to rehab on the 3rd April, 2006.
89. In his evidence in chief on the defendant’s behalf Mr. O’Rourke disputed the plaintiff’s contention that the plaintiff’s presenting symptoms on the 12th March, 2006, were a continuum of those symptoms which she had had postoperatively, as she had been well following her discharge from the Mater up until the 11th March, 2006. He agreed however that she had new symptoms which would raise real concern in that she had loss of bowel control and also had sphincter disturbance in the form of urinary retention and numbness on passing urine. However, he stated it was difficult to know if the soiling referred to on readmission was a continuation of the diarrhoea the plaintiff had experienced in the Mater or was truly a sign of incontinence. He advised that the doctors in Sligo General appeared to treat the plaintiff’s presentation as requiring urgent expert input and that they had acted appropriately in consulting with the Mater over the phone. Interestingly, however, in light of Mr. Campbell’s damning criticism of the decisions made by the clinicians at this time, counsel for the defendant did not invite Mr. O’Rourke, in the course of his examination in chief, to express his opinion on the conclusion apparently reached by Mr. Canya that the plaintiff had no new symptoms or on his advice that the patient be maintained on bed rest to be seen in the Mater on the 14th March, 2006. Neither did counsel seek his opinion as to the speed and manner in which the investigations were carried out up until her second operation on the 17th March, 2006.
90. In the course of his cross examination Mr. O’Rourke agreed that on her admission on the 12th March, 2006, the plaintiff had all of the signs which she had had when operated upon on the 3rd March, 2006, and in addition she had a one day history of faecal incontinence. He expressed himself as having “difficulty” with Mr. Canya’s conclusions that there had been no change in the plaintiff’s condition and the advice he apparently gave on the night of the 12th March, 2006, to keep the patient in Sligo General on bed rest until the 14th March, 2006. He agreed that the plaintiff should either have been sent to the Mater immediately or an urgent MRI should have been arranged after which she ought to have been transferred to the Mater. He advised that a repeat MRI was warranted having regard to the plaintiff’s symptoms and also because a surgeon would wish to proceed cautiously before deciding to operate for a second time on a patient with a discharging wound.
91. When asked if he agreed that an emergency MRI could have been obtained in the Beacon on the morning of Monday the 13th March, 2006, Mr. O’Rourke said that was a possibility. However, he reminded the Court that the Beacon was a private hospital with no emergency facilities but confirmed it was likely that this could have been obtained by the 14th March, 2006. As of the 14th March, 2006, he said that the plaintiff was still sensate of bladder and said that the sine qua non for cauda equina was having urinary sphincter disturbance. He advised that as CES progresses the patient looses sensation and goes into retention with overflow. At that stage the plaintiff was still sensate, so she had not, in his opinion, yet developed a full blown CESR because if she had she would have been constantly dribbling urine.
92. In terms of the standard of care afforded to the plaintiff by the Mater, Mr. O’Rourke agreed that relevant medical literature advises that all cases of CES should be treated as emergencies. He said that in his opinion the plaintiff had been dealt with urgently but not as an emergency and on that basis accepted that the plaintiff had not received the level of care to which she was entitled. He agreed that if there had been a delay of 72 hours in the surgery necessary to address an emergency CES then that would be unacceptable.
93. Prof. Bolger, on the defendant’s behalf, told the Court that at the time of her readmission to Sligo General on the 12th March, 2006, the plaintiff’s condition had deteriorated since her discharge from the Mater but that she was nonetheless improved from her pre operative condition on the 2nd March, 2006, when she was found to have diminished anal tone. He considered the episodes of faecal soiling described by the plaintiff on the 12th March, 2006, as relatively insignificant in light of the fact that she had reported having had diarrhoea when in the Mater postoperatively. Further her sphincter was found to be normal in the course of rectal examination, so incontinence could reasonably be ruled out. Also, while the plaintiff complained of feeling unable to fully empty her bladder, she had nonetheless emptied it while in the Accident and Emergency Department thus demonstrating that she continued to have bladder sensation. He advised that patients in extreme pain commonly develop urinary retention and that retention was not a very specific marker for CES. The most significant feature of the plaintiff’s presentation on the 12th March, 2006, was, in his opinion, the absence of any new neurological findings and he was of the opinion that the plaintiff had improved neurologically from the situation she had been in on the 3rd March, 2006.
94. Prof. Bolger advised that based on the plaintiff’s presentation and physical findings, the patient should have been scanned as soon as possible, but this was not the emergency situation advocated on the plaintiff’s behalf. He agreed that it was not ideal that the patient, when she had been seen on the 14th March, 2006, in the Mater, had then been sent back to Sligo General only to come back to the Mater on the 16th March, 2006, and that it would have been preferable if she could have been kept in the Mater and a scan arranged for her from there, but not as an emergency.
95. Mr. Grevitt was not in agreement with Prof. Bolger as to the plaintiff’s condition on readmission to Sligo General on the 12th March, 2006. He was satisfied that having regard to the earlier ASIA scores in the Mater hospital records post her earlier surgery that there had been a significant deterioration in her condition. It was his opinion that the patient had CES with retention on the 12th March, 2006, as evidenced by the altered perianal sensation and the patient’s faecal soiling which he felt was significant in that it is a late sign of cauda equina. That soiling, he said, was evidence of the loss of executive control and was not a symptom that the patient had experienced in the Mater prior to her first surgery. He explained the difference between faecal soiling and diarrhoea and was not in agreement with Prof. Bolger as to the significance of the soiling described by the plaintiff on her readmission on the 12th March, 2006. He felt that the faecal soiling was significant because it demonstrated that there was some loss of control of the anal sphincter. While anal tone was present, he advised that the plaintiff had decreased sensation in the left perianal skin.
96. Mr. Grevitt, when asked by counsel for the plaintiff to agree that the investigations that had been carried out between the 12th and the 16th March, 2006, had been done too slowly, accepted that the situation had not been “ideal”.
Non Expert Evidence
97. In relation to the care afforded to the plaintiff over this period of time the Court also heard evidence from Mr. Healy on behalf of Sligo General and from Mr. Synott on behalf of the Mater. I am satisfied that both of these witnesses did their best to give a truthful and objective account of what happened in their hospitals, albeit that neither of them appears to have been involved in a hands on way in relation to the plaintiff’s care over this period, save that Mr. Synott clearly saw the patient at about 19.00 hrs on the 16th March, 2006, and operated upon her for the second time the following day.
98. On reviewing the evidence of Mr. Healy and Mr. Synott, I believe it is fair to say that by the time the relevant clinical records had been brought to their attention in the course of cross examination, both of them expressed some reservations as to conclusions reached and decisions made by the relevant clinicians and also as to the speed at which the MRI investigation was pursued. Accordingly, I will refer to what I recognise are somewhat selective extracts from their evidence but which are nonetheless significant in the context of the expert evidence referable to this period.
99. Mr. Healy agreed that the note of the plaintiff’s condition on admission to the ward recorded at 00.15 hrs on the 13th March, 2006, to the effect that she had “no oblivious cauda equina syndrome” was not an accurate “impression”. While he initially appeared to excuse the content of the note on the basis that it had been made by an SHO he accepted that there were worrying signs that the plaintiff either had or was developing CES. He agreed that every single clinical sign of CES was recorded in the admission notes and accepted that the doctor concerned might have been mistaken in his conclusion. Mr. Healy also agreed that the plaintiff needed to be reviewed in the context of the possibility that her presentation was indicative of CES and said that he had concerns about the advice received from the Mater that the patient should be retained in Sligo General for bed rest until she could be seen at Mr. Synott’s outpatients’ clinic on the morning of Tuesday the 14th March, 2006.
100. When questioned by defence counsel as to the plaintiff’s complaint about the alleged delay between the 13th and the 17th March, 2006, Mr. Synott advised the Court that it was always difficult to assess postoperative patients in order to determine exactly where their symptoms were coming from. He said that the referral letter to the Mater had mentioned diarrhoea, had reported that the patient’s continence was normal and had stated that the patient was not in retention. However, Mr. Synnot was not correct in this regard. The first letter written by Dr. Ahmed dated the 13th March, 2006, addressed to the Mater made no mention of diarrhoea but referred to one episode of faecal soiling, the fact that the patient was experiencing urinary retention, had decreased sensation in the left perianal skin and had decreased power in her extensor hallucis longus, albeit in the presence of normal anal tone.
101. Mr. Synott advised that the plaintiff’s symptoms were possibly part of her postoperative recovery and that they were not indicative of anything new such as a recurrent disc herniation or some other cause of spinal compression. He was satisfied that the patient needed to be evaluated by MRI scan and he felt that this had been obtained as expeditiously as possible. Once the scan had demonstrated recurrent compression, surgery was carried out in an expedient manner.
102. When the actual contents of the clinical records made following the plaintiff’s emergency admission were put to Mr. Synott in cross examination and he was asked about Mr. Canya’s apparent response to the phone call from Sligo General he said he wondered why the patient had not been transferred to the Mater immediately. He stated that “with those symptoms she certainly needed an urgent MRI scan”. He felt that the immediate transfer may not have occurred because the clinicians may have considered it was pointless to transfer the plaintiff without a scan, knowing that it could not be done in the Mater. He also accepted that the plaintiff had developed full blown cauda equina at some stage after she left the Mater following her first operation.
Conclusion
103. This is not a straightforward case in terms of liability particularly due to the fact that the plaintiff was not under the care of the same hospitals and clinicians throughout the period when she required medical intervention in relation to her back condition. The clinicians in the respective hospitals did not have the benefit of the medical and nursing records of the other hospital and at times decisions had to be made regarding the plaintiff’s condition and management over the telephone. The position was further complicated by the fact that the plaintiff, because of her physical size, could not be scanned other than in what was described as the only open scanning machine which was located in the Beacon in Dublin and to which she was taken by ambulance on two occasions. Also, while it had been intended that the plaintiff would be discharged from the Mater to Sligo General for follow up wound care and physiotherapy, the patient decided she would not accept this advice and went straight home.
104. It would be much easier to assess the adequacy of the care afforded to the plaintiff had she represented to the Mater as opposed to Sligo General on the 12th March, 2006. However, this is not what happened and the facts are vastly more complicated in this case than in those referred to in the literature produced to the Court where the patients surveyed invariably presented to one hospital in the absence of prior surgery with symptoms indicative of the onset of CES. Here the plaintiff had just undergone apparently successful surgery to remove a large prolapsed lumbar disc and had experienced some postoperative complications in the form of diarrhoea and retention. Also to be factored into the Court’s assessment is the undoubted caution required of a clinician when considering the possibility of carrying out a second operation on a patient with a discharging wound and where that surgery would likely be complicated by reason of scar tissue and inflammation from the first operation.
105. Following her presentation at Sligo General on the 12th March, 2006, I am satisfied that the clinicians on duty urgently assessed the plaintiff’s condition as was mandated by her history and symptoms and also by reason of the information advised in the referral letter from Westdoc. A full history was taken and the plaintiff appears to have received a thorough neurological examination.
106. It is clear from the medical and nursing notes that the orthopaedic SHO and Registrar on duty were fully aware of the possibility that the plaintiff might, regardless of her earlier surgery, have symptoms indicative of CES and presumably it was these concerns that caused Mr. Sherazi to seek the advice of Mr. Canya in the Mater. Regrettably those in charge of the plaintiff’s care in Sligo General came to the conclusion that the plaintiff had “no obvious cauda equina syndrome” and this was their “impression” which they recorded in the notes. Mr. Canya also appears to have concluded that the plaintiff’s symptoms were no different than those she had had when she was in the Mater. The upshot of the exchange between the clinicians was a decision that the plaintiff could be left in Sligo General on bed rest to receive a specialist review in the Mater on the 14th March, 2006, which review would take place in the absence of any postoperative imaging of the lumbar spine.
107. In the light of the evidence of Mr. Campbell, Mr. Grevitt, Mr. Healy and indeed Mr. Synott as to the plaintiff’s presenting complaints on admission to Sligo General on the 12th March, 2006, and the findings made on neurological examination, I am satisfied that the aforementioned conclusions and decision were not ones which would have been made by any reasonable body of like clinicians in similar circumstances if acting with due care for the plaintiff’s welfare. The plaintiff clearly had a number of signs potentially indicative of CES, namely perianal numbness, significant urinary retention and a history of faecal incontinence the previous day. The only other warning sign of CES which was missing was imaging showing a disc compromising the spinal cord, an investigation which was not directed. Further, her symptoms were not the same as when she had been in the Mater. The plaintiff had experienced what was considered to have been classic postoperative urinary retention on the 3rd and 4th March, 2006. However, she had made a full recovery in this regard and was noted to be voiding normally from the 5th March, 2006, until her discharge on the 8th March, 2006. Further, the plaintiff had not had any history of faecal incontinence during her stay in the Mater. The first recorded episode following her surgery of the 3rd March, 2006, was on the 11th March, 2006, three days after her discharge. The plaintiff had had what appears to have been an isolated episode of diarrhoea in the Mater on the 7th March, 2006, and it was not diarrhoea that she complained of when she presented to Westdoc and the difference between these two conditions in the context of CES was made very clear by Mr. Grevitt in his evidence. The plaintiff also described a feeling of numbness when passing urine and was found to have decreased sensation in the left perianal skin. Mr. Campbell, Mr. O’Rourke, and Mr. Grevitt were all agreed that the plaintiff’s condition had significantly deteriorated post her discharge from the Mater. She had two of the red flag signs of CES even if her anal tone was preserved at that point. The third red flag would have been imaging demonstrating the presence of a disc compromising the spinal cord but no such scan was advised to rule out the real possibility of CES. Mr. Canya advised that the patient be maintained on bed rest until she could be seen at the Mater on Tuesday the 14th March, 2006, and it seems that no direction was given to Sligo General to try to get an MRI scan carried out in advance of the appointment.
108. It was the aforementioned conclusions that the plaintiff was not at risk of CES and that her condition was unchanged from that which she had enjoyed in the Mater that determined the speed at which she was investigated. This in turn had the effect of delaying the surgery required to decompress her spinal cord.
109. It is not necessary for me to determine whether the clinical “impression” of the plaintiff’s condition reached by Dr. Ahmed and Mr. Shirazi was based on their own assessment of the plaintiff or whether they were led into error or a state of false security due to advice received from Mr. Canya’s in the Mater. The upshot of the exchange between Mr. Shirazi and Mr. Canya was that the patient was left in somewhat of a medical limbo on bed rest in Sligo General until she was seen in the Mater on the 14th March, 2006. Even Mr. Synott in his evidence agreed that the plaintiff’s symptoms on admission on the 12th March, 2006, required urgent investigation by MRI scan and Prof. Bolger accepted that as of the 14th March, 2006, it would have been prudent to get an urgent MRI scan.
110. While the defendants maintained that the plaintiff was appropriately investigated on an urgent basis, as opposed to on the emergency basis advocated as mandatory by Mr. Campbell, it appears to me that following the discussion with Mr. Canya in the early hours of the 13th March, 2006, her investigations advanced on anything other than an urgent basis and in fact proceeded in a relatively routine and relaxed manner as can be seen from the following records:-
(i) The Sligo General records note that Mr. Canya advised that the patient was “well known to him” and that he “was not worried about her” and was “not keen” that she be transferred back to the Mater. He advised that the patient be maintained on bed rest in Sligo General until the 14th March, 2006, and apparently gave no direction that an MRI should be sought in advance of that appointment.
(ii) The letter of referral to the Mater written by Dr. Ahmed on the 13th March, 2006, following the discussion between Dr. Shirazi and Mr. Canya, asks for the patient to be reviewed and sets out the patient’s signs and symptoms but makes no mention of any urgency, the possibility that the patient might be at risk of CES or might need an MRI scan.
(iii) The note following the review of the patient in the Mater on the 14th March, 2006, records that the patient needed a repeat open MRI scan but again there is no indication in the notes that this should be obtained urgently.
(iv) Mr. Sproule, Orthopaedic Registrar wrote to Mr. Shirazi following the plaintiff’s attendance at the Mater on the 14th March, 2006, stating that the patient had no new neurological difficulties. He said that it would be “prudent to repeat her MRI in the Beacon and forward the films to us here in the Mater”. Again there was no sense of urgency, regardless that the clinical notes for the 14th March, 2006, record the fact that the patient was experiencing ongoing retention, had reduced perianal sensation and had experienced two episodes of faecal incontinence, albeit that she was noted to have normal anal tone.
(v) The letter of 15th March, 2006, sent by Dr. Ahmed to Dr. Fintan, consultant radiologist at the Beacon, while referring to all of the plaintiff’s relevant symptoms asked that the MRI be performed “at their earliest convenience” because “she (the plaintiff) is going to England on the 22nd March” and having regard to her symptoms Mr. Synott had advised that an MRI would be “prudent”.
(vi) In the letter of the 15th March, 2006, sent by Dr. Ahmed to Ms. Smith, General Manager in Sligo General seeking her approval for the expenditure on the open MRI he stated that Mr. Synott had advised that the MRI should be carried out “as a matter of prudence”.
111. From the aforementioned notes and correspondence it appears that those dealing with the plaintiff’s care from the time of the phone call to the Mater in the early hours of the morning of the 13th March, 2006, up until the time she had her open MRI scan on the 16th March, 2006, did not view her history or symptoms as potentially indicative of CES. Yet, when the plaintiff presented to Sligo General on the 12th March, 2006, her condition was worse than that which had justified Mr. Synott making a decision to operate as a matter of relative urgency on the 28th February, 2006. On admission to the Mater on the 28th February, 2006, the plaintiff was not in urinary retention. This is to be contrasted with her position on the 12th March, 2006, when a catheter was passed in the Accident & Emergency Department and she passed 600ml of urine. By 03:00 hrs the following morning, a further catheter was passed and the plaintiff expelled 1,400ml of urine, showing clearly that she had ongoing retention. On the 28th February, 2006, and on the 12th March, 2006, the plaintiff was found to have altered perianal sensation with normal anal tone. However, on the 12th March, 2006, the plaintiff had been incontinent the previous day but had no equivalent history on the 28th February, 2006. Indeed, Mr. Synott in his evidence stated that had the plaintiff been incontinent on the day of her first admission to the Mater on the 28th February, 2006, that he would have stayed that night to operate, albeit that the situation was somewhat different in that he had the benefit of an MRI scan showing the presence of a large central disc. Nonetheless, his evidence certainly points to the significance of the symptoms in question and the importance of imaging for the purpose of making a CES diagnosis.
112. The three red flags or main pillars of a CES diagnosis are the presence of some sphincteric disturbance, altered perineal sensation and the presence of a very large disc causing compression of the cauda equina. Mr. Grevitt, Mr. Synott, Mr. Healy and Mr. O’Rourke all accepted that the plaintiff had the first two of these pillars when she returned to Sligo General on the 12th March, 2006, and these were new symptoms which the patient did not have when she left the Mater. In reaching these conclusions, I have preferred the evidence of Mr. Campbell to the evidence advanced on behalf of the defendants. However, I believe my conclusions are substantially supported by the evidence of Mr. O’Rourke that having regard to the plaintiff’s symptoms in the early hours of the 13th March, 2006, she should have either been directly referred back to the Mater with immediate effect or an emergency MRI scan should have been sought the morning after which that transfer should have taken place. According to the literature produced to the Court in the course of the evidence, the whole purpose of having red flag signs is to ensure that intervention occurs before the patient develops CESR at which point their spinal cord can become terminally compromised over a relatively short period.
113. Having regard to the plaintiff’s bladder and bowel symptoms and her decreased perineal sensation on readmission to Sligo General, I am satisfied that her condition warranted emergency investigation by MRI scanning and that this should have been recognised by Mr. Shirazi and Mr. Canya. I accept Mr. Campbell’s evidence that the advice given by Mr. Canya, when contacted by telephone in the early hours of the morning of the 13th March, 2006, that the plaintiff should not be transferred to the Mater but detained in Sligo General for bed rest and observation until the morning of the 14th March, 2006, when she would be seen at Mr. Synott’s clinic, was to fall short of the standard of care acceptable in such circumstances.
114. Mr. Synott himself, having had the detail of the plaintiff’s symptoms and findings on admission to Sligo General put to him in cross examination, seemed to be relatively in agreement with Mr. O’Rourke in terms of the inappropriateness of the decision made to leave the plaintiff on bed rest in Sligo General. Indeed, I infer from his evidence that he would have expected Mr. Canya and Mr. Shirazi to have agreed in the course of their telephone call that the patient needed an MRI scan on an urgent basis and that they should have tried to get that imaging done in advance of her attendance at the outpatients’ on the 14th March, 2006. Nothing was said by Mr. Synott in the course of his evidence which to me appeared to support the decision made simpliciter to postpone any further investigation or specialist examination of this patient until Tuesday, the 14th March, 2006.
115. Before reaching the aforementioned conclusion regarding the adequacy or otherwise of the care afforded by the defendants to the plaintiff over this final period, I considered carefully all of the defendant’s evidence and in particular that of Prof. Bolger which was much more robust than that of the defendant’s other expert witnesses. Prof. Bolger is undoubtedly a surgeon of significant expertise and I found him to be a thoughtful and knowledgeable witness. However, when dealing with the point at which he considered an emergency MRI scan was warranted against the risk of CES, he seemed to be of the opinion that such an obligation only commenced at the point at which the patient had lost anal tone and had developed painless retention, an opinion which I cannot accept as valid having regard to all of the other evidence. In the course of the proceedings the Court was told that emergency surgery is considered vital in cases of CES where the patient still has some degree of executive function of bowel and bladder as it is only in this category of case that the patient has a chance of making something close to a full recovery of their bladder and bowel function post surgery. If a decision to seek an MRI scan is to be postponed until the patient has acute CES, then it seems almost inevitable that the patient will be denied any realistic prospect of making a full recovery should the diagnosis only be made at that point. Further, what we know as a matter of fact is that Mr. Synott actually operated twice on this patient as a relative emergency in the face of the risk of damage to the cauda equina when she had not lost her anal tone and was not suffering from painless retention.
116. In coming to my conclusions that an emergency MRI was warranted I have also taken into account the fact that the plaintiff on readmission reported numbness through all dermatomes as opposed to those levels normally associated with CES. Likewise I have considered the evidence of Prof. Bolger that any prudent surgeon would be cautious about advocating further surgery in a patient who already had previously two surgical approaches to the L4/5 disc. However, I am satisfied that the defendant’s failure to ensure that the patient had an emergency MRI scan following her admission to hospital on the 12th March, 2006, ultimately resulted in her surgery being delayed by approximately 48 hours.
117. What is clear is that it was possible, without expressing any degree of urgency, to get an appointment for an open MRI scan in the Beacon on the 16th March, 2006, having sought the same the previous day. In such circumstances I am satisfied on the balance of probabilities had an emergency MRI scan to rule out CES being sought first thing on the 13th March, 2006, that it could have been done later that day or early enough on the Tuesday morning so that the plaintiff would have had it with her when seen in Mr. Synott’s clinic at some stage on Tuesday, the 14th March, 2006. I am also satisfied that the manager’s approval for that scan could have been obtained to facilitate the MRI being obtained in that time frame. Given that the patient when reviewed by Mr. Synott, with the benefit of the MRI at 19:00 hrs on Thursday the 16th March, 2006, was operated upon the following day, I think it as logical to conclude that if she had been seen at some stage during his Tuesday clinic, he would have directed that she remain fasting and that she would have been operated upon at some stage the following day.
118. In conclusion, in relation to this last period of the plaintiff’s hospitalisation, I am satisfied that the defendant’s failure to ensure that the plaintiff had an urgent MRI scan following her admission to hospital on the 12th March, 2006, ultimately resulted in her surgery being delayed by approximately 48 hours. However, it is important in the context of the facts of this case to note that the defendants, even if using all reasonable care, could not have been expected to have had the plaintiff to surgery in the Mater within the 48 hour period which is recommended by the plaintiff’s experts and validated in the medical literature. This, of course, has significant implications in terms of the issue of causation and damages.
Causation and Damages
119. The principle issues I now have to determine are:-
(i) what injuries and symptoms does the plaintiff have which can be connected to CES? and
(ii) which or how much of these injuries and symptoms can be ascribed to the delay in the plaintiff’s surgery which I have concluded should have been carried out by the evening of the 15th March, 2006, rather than about 48 hours later on the 17th March, 2006.
120. The plaintiff has a myriad of complaints which she seeks to attach to the defendant’s negligence. However, having considered carefully all of the evidence including that given by the plaintiff’s treating clinicians, I am not satisfied that the evidence was sufficient to establish the validity of many of these complaints. Further, of those which do exist, I have had real difficulty in connecting many of them to CES.
121. In relation to the plaintiff’s back symptoms, which include complaints of low back pain radiating into the arms and trunk, pain and pins and needles in both feet, a sensation of deadness in both legs and a restriction in her mobility to the point that she maintains she needs two crutches and at times a wheelchair to mobilise, I am not satisfied that she has all of these symptoms or restrictions or that if she has I can associate them with CES or any delay in its treatment. Also, I accept the evidence given by Mr. O’Rourke, Prof. Bolger and Mr. Mulligan that in many instances the plaintiff’s response to physical testing and examination was inconsistent and unreliable thereby casting significant doubt upon the validity of her complaints. One such example was her response to a straight leg raise test which was carried out when she was seated and then when she was recumbent. The results of these tests, which are effectively the same, led to completely inconsistent results.
122. I accept the defendant’s evidence that the plaintiff’s lower limbs are essentially normal, that she should not need crutches and that any difficulties she has walking cannot be explained by any delay in the surgery carried out. I am also satisfied that there is no objective basis for the extent of the disability complained of by the plaintiff in relation to her low back. Neither has she proved that the degree of pain which she experiences in her back has been exacerbated by any delay in her surgery. In this regard I accept the evidence of Prof. Bolger that persistent low back pain cannot be related to nerve damage to the cauda equina but is rather a symptom of the underlying degenerative process that caused disc material to prolapse in each instance. I further accept Mr. O’Rourke’s evidence that spinal decompression is not a treatment for back pain and that regardless of any delay in the carrying out of the final surgical procedure the plaintiff was likely to have continued to suffer from low back pain due to the fact that she had experienced three separate prolapses of disc material at the L4/5 level commencing as early as 1994.
123. I am not satisfied that the plaintiff has established any organic basis for her complaints regarding neck pain, limitation of shoulder movement, pins and needles and reduced sensation in the hands or pain radiating into her trunk. Even had she done so, symptoms of this nature apparently emanate from problems at a level well above the lumbar spine which was the level at which the cord was compressed and therefore cannot be associated with CES.
124. Apart from the aforementioned injuries, the plaintiff also complains of having sustained very significant injuries to her bladder and bowel. In relation to the loss of bladder function the plaintiff led expert evidence from Mr. Ronald Miller, Consultant Urologist. He did not examine the plaintiff but rather prepared his expert report and gave his evidence principally based on the material and records which had been furnished to him by the plaintiff’s solicitors. Mr. Miller’s evidence was essentially confined to the issues of causation and prognosis in circumstances where his report had advised that it was for spinal specialists to comment upon whether there had been unnecessary delay in the management of the plaintiff’s care up until the 3rd March, 2006.
125. Mr. Miller told the Court that having regard to the plaintiff’s urodynamic studies conducted in the UK in 1994, there was nothing to suggest that she had an unstable bladder prior to the events that are the subject matter of these proceedings. He stated he was satisfied from the records in the Mater that the plaintiff had been sent to rehab because she had a neuropathic bladder i.e. one that was not contracting and she needed to be taught how to manage it.
126. Mr. Miller told the Court that the plaintiff had experienced an imperfect recovery following her surgery on the 17th March, 2006, and that it was important for her to keep the volume of urine and the pressure within the bladder low to aid recovery and to self catheterise as advised. He said that from the results of two urodynamic studies, the first of which of was carried out in January, 2007, he felt it was probable that the plaintiff’s bladder was atonic from the time of her discharge from the Mater and that there had been little change thereafter. He believed this to be the case regardless of the letter from Mr. Flynn, Consultant Urologist dated the 13th September, 2006, which expressed his hope that the plaintiff might ultimately become catheter free and the medical records which gave the impression that during this period the plaintiff appeared to be voiding relatively normally using her urethra leaving only low residuals behind.
127. Mr. Miller agreed that the medical records in rehab established that the importance of catheterisation had been impressed upon the plaintiff and that a patient who does not comply with catheterisation is at risk of increased bladder dysfunction and potential kidney damage. However, he advised that nobody likes carrying out intermittent self catheterisation and that patients need training, supervision and some degree of manual dexterity to engage with the process and that it is normal for patients to resist catheterisation. In his opinion the plaintiff was psychologically labile and he felt that her resistance to catheterisation fell within the normal range of reactions to be anticipated in such circumstances. However, his overall impression of the plaintiff was that in the years after her surgery she had wanted to take control of her bladder function and had decided to catheterise as little as possible in the hope of proving to her doctors that she did not need to engage with daily self catheterisation as they had advised was necessary.
128. Mr. Miller agreed with counsel for the defendants that the plaintiff had not only failed to self catheterise as advised by her clinicians but that she had given very different accounts of the extent to which she had engaged with self catheterisation to those in charge of her care. While he accepted, from the medical records, that the plaintiff’s bladder function appeared to improve somewhat while she was in the rehab, he did not agree that she had not suffered permanent bladder damage as a result of CES or that such damage was related to other matters unconnected with events prior to the 17th March, 2006.
129. Mr. Miller’s conclusion was that the plaintiff’s bladder symptoms are genuine and permanent and that she is now, albeit very belatedly, engaging fully with the process of self catheterisation. In terms of her future, he believes that the plaintiff will have to self catheterise twice daily for the rest of her life. However, he felt that her need to self catheterise should not unduly restrict her in relation to her day to day activities and while she might experience occasional episodes of wetness he felt this could be overcome by the wearing of a protective pad.
130. In respect of causation, Mr. Miller had worked on the assumption that the Court was likely to conclude that CESI was present by mid February, 2006 and that there had been a culpable delay on the part of the defendants in carrying out the plaintiff’s first surgery on the 3rd March, 2006. On that basis he advised that had surgery been performed by the 28th February, 2006, he would have expected the plaintiff to have returned to having relatively normal bladder function. Being unaware as to the Court’s likely findings, Mr. Miller’s opinion was not canvassed as to the likely damage occasioned to the plaintiff’s bladder, if any, should the Court come to the view that the defendant’s negligence was confined to a delay of approximately 48 hours in dealing with CESR which was present by the start of the day on the 12th March, 2006.
131. Mr. Miller gave his evidence based upon his belief that the plaintiff’s atonic bladder was a feature of disc compression which had occurred over an extended period. Based on this assumption he stated that had there been earlier intervention the lion’s share of the nerve damage would have been preventable. The difficulty with this evidence from a causation perspective is that his opinion was based on the assumption that there had not been a complete and successful decompression of the cauda equina on the 3rd March, 2006.
132. Mr. Miller also told the Court that the plaintiff’s failure to self catheterise had not helped matters but that her failure in this regard was not unusual and was foreseeable. Further, he stated that “at least 50% of her current bladder situation could be attributable to the spinal issues, my gut feeling is that it could be rather more than that”. Other factors beyond direct nerve damage which he stated were impacting upon the function of the plaintiff’s bladder included her medication and in particular Amitryptolene, which he advised is a major bladder inhibiter and the use of antidepressants and benzodiazepines which also interfere with the bladder’s contractibility given that they relax the smooth muscles. The plaintiff has also been taking medication for constipation and this would also have an effect on the control of her bladder. Finally, the plaintiff has diabetes which was diagnosed in 2009, and this, according to Mr. Miller could also influence her bladder function and make her prone to urinary tract infections.
133. Mr. Granger, Consultant Urologist, on the defendant’s behalf, accepted that the urodynamic study of the 17th January, 2007, established that the plaintiff had very little bladder sensation and that she had, at that point, developed an atonic bladder. However, he felt that her medical records in rehab indicated that she was capable of contracting her detruser muscle and voiding in the normal way, leaving only small residual measurements of urine behind, until September, 2006. This suggested to him that the plaintiff could not have suffered any irrevocable damage to her bladder nerve supply between December, 2005 and her surgery on the 17th March, 2006. He further relied upon Mr. Flynn’s letter of September, 2006, to which I have earlier referred, in support of his conclusion. Mr. Granger was at a loss to explain how the plaintiff’s bladder function had apparently deteriorated between September, 2006 and January, 2007 and he was of the opinion that had she complied with the advice given to her when in rehab regarding catheterisation that she would probably not be self catheterising now.
134. Having considered the evidence of the expert urologists in this case, I tend to prefer the evidence of Dr. Miller to the effect that it is probable that the plaintiff had an atonic bladder on her arrival at rehab from the Mater regardless of the notes that record the plaintiff’s ability to void using her urethra on occasions while leaving only small residues behind. I accept his evidence that a patient may be able to void irrespective of significant damage to their bladder for a number of reasons including the possibility that they may void because of increasing abdominal pressure in the presence of a weak sphincter. However, even if it is the case that the plaintiff’s bladder was not atonic on her arrival at rehab and that its function subsequently deteriorated because of her failure to comply with the catheterisation programme advised for her, I do not believe that I should treat the plaintiff as a litigant who has failed to mitigate her loss. Mr. Miller made it clear in the course of his evidence that many patients, particularly those suffering from psychological problems, find self catheterisation difficult and challenging and he felt that the plaintiff’s response could not be considered out of the ordinary. I reject the submission made by counsel for the defendant that any injury sustained by the plaintiff due to her failure to self catheterise should, from a legal prospective, be treated in the same manner as a claimant who sustained additional injuries due to not taking medication which had been prescribed for them by their clinicians. To my mind, catheterisation is a demanding task which requires both physical skill and significant mental fortitude on the part of the participant. It is an exercise which brings with it psychological and physical challenges which are relatively unique and it in no way comparable to what is required of a patient who is advised to comply with a straightforward drug regime. In the case of self catheterisation, Mr. Miller told the Court that the plaintiff’s response to the need to self catheterise was to be anticipated unlike the position of a patient advised to take medication where their failure to engage with that medication is clearly not to be anticipated.
135. Based on the aforementioned evidence and conclusions, I am left in the difficult position of trying to determine the extent to which, if any, the delay of approximately 48 hours in the carrying out of the plaintiff’s final surgical procedure has adversely affected the plaintiff’s outcome particularly insofar as her bladder function is concerned. The answer to this question is extremely complex because the expert evidence given to the Court and that contained in the literature is not at all clear as to the significance of delayed surgery in cases of CESI and CESR.
136. Insofar as the literature relied upon by the parties is concerned, the condition of cauda equina syndrome, be it CESI or CESR, is so rare that there is little enough by way of published material documenting the outcome of patients unfortunate enough to develop this condition. Further, all of the studies relied upon by the parties contain a mix of people who were operated upon at different stages. Some had CESI and others had CESR. Hence, the interpretation of the results of these surveys is very complicated. Nonetheless, the literature is relatively dogmatic regarding the urgency with which CES should be treated and reports that the prolapse should be removed at the earliest opportunity because firstly it will reduce the plaintiff’s pain and secondly because the delay in treatment can only worsen the prospect of urological recovery. Further, most of the studies referred to in the course of the evidence recommended that decompression surgery should take place within 24 to 48 hours of the making of the diagnosis. In this regard, the Shapiro article entitled “Medical Realities of CES secondary to Lumbar Disc Herniation” (2000), argues that the sooner the cauda equina has been decompressed after the onset of symptoms the more likely it is that the patient will not be left with residual neurologic deficit. That study reviewed 44 patients with CES. Nineteen of the 20 patients who were operated upon within 48 hours of the onset of CES recovered normal bladder function within six months. However, of the 24 who were delayed, 63% were still using a catheter at one year.
137. There are, however, many other authors of significant repute who apparently hold the view that the die is cast once the prolapse occurs. The article relied upon in the course of evidence authored by Lavy and published in the British Medical Journal, clearly advises that the clinical outcome for patients with CESR is poor anyway and bears no relationship to the timing of the surgery, the underlying thinking being that only patients with CESI benefit from emergency surgery because at that point it is hoped that the further deterioration of a patient’s bladder can be halted by immediate surgery.
138. In the present case, Mr. Grevitt was of the opinion that the die was cast regardless of whether the plaintiff received surgery on the 13th or the 17th March, 2006, because of the presence of CESR and bowel problems at the time she represented to Sligo General on the 12th March, 2006. In his own article on CES published in 2007, he referred to other studies where those patients who had developed CESR before surgery had been seen to have a universally worse outcome than those who were operated upon before control of the bladder was lost. However in a study carried out in his own hospital the authors did not find this to be the case. The patients with CESR prior to surgery did no worse than those who received decompression surgery in advance of the development of CESR.
139. Certainly the preponderance of the medical literature relied upon by the plaintiff in these proceedings suggests that once CESR is established the outcome is bleak and regrettably it does appear to be the case that the plaintiff had developed CESR by the the the start of the day on 12th March, 2006. Mr. Grevitt and Mr. Synott both seemed to accept, that this was the position, albeit with the benefit of the MRI scan done on the 16th March, 2006. Accordingly, if I accept, as I do, that the plaintiff had CESR at the commencement of the 12th March, 2006, at best the plaintiff would have had her surgery in the course of the afternoon of the 15th, approximately 80 hours after the onset of CESR. She would not have been operated upon within the advised 24- 48 hour recommended window and also fell into the category of patient likely in any event to have a less than full recovery even if operated upon within that window because of her CESR.
140. Having taken all of the aforementioned evidence into account I am nonetheless satisfied that the delay in carrying out the decompression of the plaintiff’s spine in the presence of CESR, probably led to the damage to the plaintiff’s bladder being more severe and her recovery less successful than would otherwise have been the case had she been operated upon by the afternoon of the 15th March, 2006. I cannot accept the defendants’ evidence to the effect that the further delay of approximately 48 hours made no difference to the plaintiff’s outcome as on the 14th March, 2006, she was sensate as regards her bladder when seen at the outpatients’ department of the Mater, even if she was in retention and at that point she still had normal anal tone. By contrast on the 16th March, 2006, the plaintiff was noted to have been complaining of difficulty voiding, dysuria, retention and incontinence and also reported “increased incontinence – four times” and numbness in the perianal area, the latter condition apparently being confirmed on testing. Accordingly, there appears to have been something of deterioration in the plaintiff’s overall condition over the period commencing the 12th March and ending on the 17th March, 2006.
141. However, I am satisfied that even in the absence of any negligence on the part of the defendants it is highly likely that the plaintiff would not have recovered full bladder function. I believe she would probably have had problems with urgency because of the fact that she would have had CESR for 80 hours before surgery even absent any negligence. I also think it likely that she would have needed to self catheterisation from time to time due to failure to fully recover bladder function. Such outcome must be contrasted with the significant difficulties which the plaintiff will now endure for the rest of her life whereby she will have to self catheterise twice daily, something that will require significant management in the context of her day to day activities.
142. The plaintiff also maintains that she has sustained a significant and permanent injury to her bowel as a result of the defendant’s negligence. She told the Court that since she came into the defendant’s care she has suffered from difficulties with constipation, incontinence and lack of perianal sensation. The plaintiff has been taking substantial amounts of medication in respect of her bowel dysfunction and has been referred to a number of consultants by her general practitioner, Dr. O’Gorman. In particular she has attended Mr. John Hyland, Consultant Gastroenterologist and is presently under the care of Prof. Ronan O’Connell at St. Vincent’s Hospital. Apart from medication for her bowel, the plaintiff maintains that she now must carry out what is described as a fleet enema twice a day in default of which she either becomes significantly constipated or incontinent. All of these problems she seeks to attribute to the defendant’s negligence and, of course, the onus of proof rests with her in this regard.
143. Dr. O’Gorman told the Court that the plaintiff has had a lot of problems with her bowel since her fall from the motor scooter in November, 2005. She has apparently required vast amounts of different medications to deal with these problems and he has referred her to a number of consultants in the hope of bringing her symptoms under control. However, somewhat strangely given the extent of her alleged bowel problems, the consultants who have been treating the plaintiff in respect of these problems were not called to give evidence on her behalf and neither did the Court have the benefit of any expert evidence in relation to her bowel function in terms of either condition or causation.
144. The plaintiff was, however, examined by Mr. Eadhbard Mulligan, Consultant General and Colorectal Surgeon on the defendant’s behalf on the 4th January, 2012. In the course of that examination, Mr. Mulligan told the Court that the plaintiff did not raise any complaint about her bowel. Neither did she advise him of her need to carry out daily enemas. Her three major complaints were her inability to walk, back pain radiating to her shoulders, head and legs and finally the existence of blisters to the buttocks and legs. Further, he carried out an examination destined to establish whether the plaintiff had any colorectal symptoms which might be attributable to the negligence alleged against the defendant and found that she had normal anal tone and a significant anal squeeze.
145. Based on his examination, Mr. Mulligan concluded that the plaintiff does not have any true faecal incontinence and he is satisfied that the likely cause of her constipation or any other bowel symptoms is the opiates which she is taking rather than due to any damage occasioned to her bowel as a result of delayed surgery.
146. In support of his opinion that the plaintiff is unlikely to have sustained any permanent bowel damage as a result of CES or any delay in the decompression of her spine, Mr. Mulligan told the Court that there was almost no evidence in the plaintiff’s medical records to suggest that anybody had ever witnessed the plaintiff having an episode of incontinence post her surgery of the 17th March, 2006, even though there were isolated medical records recording her account of a small number of such events. In particular, he drew the Court’s attention to the fact that the plaintiff has been hospitalised on innumerable occasions since the 17th March, 2006, and that in the majority of cases the records in relation to these admissions make no mention of bowel issues. Indeed, he felt that the evidence would suggest that from the time of her discharge from rehab all of the way up until the middle of 2007, the plaintiff seemed to enjoy significant improvement in her bowel function which he felt supported his view that her bowel problems are more likely to be the indirect consequence of her drug/medication regime.
147. Insofar as the plaintiff claims that she has a loss of genital sensation due to the defendant’s negligence, I am not satisfied that she has discharged the burden of proof in this regard. Firstly, I am not convinced as to the extent of the loss of sensation complained of. In this regard, the Sligo General records in respect of the period covering the 6th February, 2009, to the 13th February, 2009, note that the plaintiff complained of significant vaginal discomfort during this period. Also, even if the plaintiff does have symptoms of this nature, I am not satisfied on the balance of probabilities that any such loss of sensation should be ascribed to the additional 48 hour delay in the carrying out of her spinal decompression given that even in the absence of any negligence on the part of the defendants, her surgery would likely only have been carried out approximately 80 hours post the onset of CESR thus making an adverse neurological effect of some degree almost inevitable.
148. I am not satisfied that the plaintiff has established any other injuries which I can relate to her delayed surgery.
149. To conclude, I believe that even if the plaintiff had received optimum care for her CESR she would in any event, because her surgery would have been significantly delayed beyond the recommended 48 hour window, have sustained permanent neurological damage to her bladder. As a result I believe she probably would have suffered from some degree of urgency and would have needed to wear a pad for protection. I also am satisfied that the plaintiff’s bladder would have remained dysfunctional to the point that she would have had to self catheterise frequently albeit intermittently. However due to the defendant’s negligence she will now have to self catheterise twice daily for the rest of her life and this will require her to adjust her lifestyle to accommodate such a requirement. I am also satisfied that the additional burden of having to deal with daily self catheterisation will adversely impact on the plaintiff’s already vulnerable psychological condition. In all of the circumstances I will award a sum of €120,000 by way of general damages.
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