A practical example in the context of a Cauda Equina case with an operation on another day argument
The Claimant’s claim concerned delayed diagnosis of Cauda Equina Syndrome (“CES”) consequent upon the development of a haematoma after elective disc decompression surgery on 9th March 2021. The cause of CES is usually disc herniation, but can also be haematoma, causing compression of the cauda equina, the bundle of nerves below the end of the spinal cord. CES requires prompt surgical decompression because if the compression of the cauda equina is not relieved promptly permanent disability may result.
Background
The Claimant had a history of back pain and sciatica. She decided to undergo elective disc decompression surgery. She had also been diagnosed with diabetes and had been prescribed Aspirin (an antiplatelet medication) as a preventative measure to reduce the risk of cardiovascular disease.
In the pre-operative clinic on 4th March 2021 (5 days before surgery) she was told to stop Aspirin “NOW”. Antiplatelet medication, such as Aspirin, should be stopped well before surgery to reduce the risk of bleeding perioperatively. Guidance disclosed by the Defendant confirmed that where there is a high risk in terms of consequence of bleeding perioperatively (and epidural haematoma is specifically mentioned) and low risk of thromboembolic events, then Aspirin should be stopped.
The Claimant underwent surgery as planned on 9th March 2021. The following morning she had made a good recovery. Her sciatica had eased and she was pleased with the results. By the morning of 11th March 2021 it was noted she could likely go home. She had the normal sensation of needing to pass urine and walked unaided to the bathroom where she passed urine with normal flow and volume.
However, by early evening that day she was noted to be “writhing in pain”. This was associated with perineal anaesthesia. She struggled to urinate and could not feel the insertion of a catheter. All of these symptoms are associated with development of a post-operative haematoma causing compression to the cauda equina. The clinical impression was noted, correctly, as “? CES”.
Appropriately, an urgent MRI was undertaken. Unfortunately, as she was in severe pain she was unable to lie still. The MRI concluded that the scan was “significantly degraded and it is difficult to exclude a haematoma here”.
The decision was made not to return her to theatre immediately but to starve her from midnight (as a prelude to surgery) and undertake a further MRI the following day. This was undertaken late morning on 12th March 2021. However, it had to be abandoned due to the Claimant’s significant pain. Nevertheless, she was returned to surgery at 3pm that day where a haematoma compressing the cauda equina was found and removed.
As a result of CES, the Claimant suffered pain in both legs, particularly the feet. She had weakness in both legs. She had a dropped foot on the right. She lost all genital sensation. She had to self-catheterise. She was incontinent of faeces and had to perform bi-weekly colonic irrigation. Her mobility was limited. She had to stop work. Her home was unsuitable, she required single level accommodation and significant ongoing care.
The Two Cases Advanced
The Claimant advanced two cases. The primary case was that the surgery should not have taken place at all on 9th March 2021 because of the recent cessation of Aspirin therapy. The incidence of post-operative haematoma in spinal surgery is around 0.5%. Had the surgery taken place on a later date after a longer period of cessation of Aspirin therapy (at least two weeks), then the risk of haematoma would have been reduced and would likely not have occurred. This is a Chester v Afshar [2015] 1 AC 134 type argument. In Chester v Afshar, the claimant consented to elective spinal surgery but was not properly warned of the risk that she may suffer CES which risk had materialised. Had she been properly consented, surgery would have been delayed to another day. The risk of suffering CES would have been the same but as it was a small risk, it would probably not have occurred. By a majority, the House of Lords dismissed the defendant’s appeal.
Chester v Afshar has been subject to significant criticism and in Pomphrey v Secretary of State for Health 2019 WL 01995493, HHJ Cotter QC (as he was then) held that such a claim would only succeed where there is a “material alteration” in the risk if the surgery is performed on another day. This was plainly a sensible decision.
In the Claimant’s case, she asserted that there would have been a material alteration in risk, namely that she would not have been on Aspirin therapy for a longer period which would have reduced the risk of haematoma.
The Claimant’s secondary case was that she should have been returned to theatre as soon as she had reported inability to pass urine and had complained of increasing pain. Surgery would have taken place on 11th March 2021 not 12th March 2021. Short delays in removing a haematoma compressing the cauda equina are recognised as being able to cause considerable permanent neurological damage and resulting disability.
The Defence
Consistent with the letter of response, liability for the primary case (that the initial elective surgery should have been delayed) was denied but liability for the secondary case (that she should have been returned for revision surgery on 11th March 2021) was admitted. The causative implications were still profound in relation to the secondary case but plainly not as extensive as for the primary case (where the haematoma would not have been suffered at all).
The Particulars of Claim specifically raised the issue of whether, as a fact, the operating surgeon was aware that the Claimant had only stopped taking Aspirin five days prior to surgery and whether, as a fact, the surgeon would have continued with surgery had he known.
The Defence, rather than respond to those allegations, noted that “there is no consensus in the literature or amongst spinal surgeons as to whether to stop aspirin prior to surgery at all and that stopping aspirin is not medically necessary”. That did not respond to the allegations raised.
In relation to causation, the Defence asserted that “It is further denied that aspirin would have had any particular impact at 5 days; haemostasis was achieved in the surgery on 9 March 2021, the injury suffered by the Claimant was due to a secondary haemorrhage 7 days post-cessation of aspirin”.
The Part 18 Requests for Further Information
The Claimant made Part 18 Requests seeking specific responses to, inter alia:
- Was the operating surgeon aware that the Claimant had only stopped taking Aspirin on 4th March 2021?
- If he was not aware, would he have postponed the planned elective surgery on 9th March 2021 had he been aware?
- Whether it is admitted that the risk of haematoma is increased if there has been late cessation of Aspirin therapy?
- If not, why was the Claimant instructed to stop Aspirin “NOW” at the pre-operative assessment?
The Defendant repeatedly requested additional time to respond to the Part 18 Requests. In the event, the Defendant made an offer of £870,000. This was not accepted.
After further chasing, the Defendant served a response which failed to deal with the key questions (above) noting that they would be matters for factual witness evidence. The Claimant responded citing para 18.1.2 of the White Book when discussing the case of Fairclough that “it is not an answer in itself to say that the information sought will be provided later, whether on disclosure or in witness statements. If information falls within the scope of the rule [CPR 18.1], and it is reasonably necessary and proportionate to have the information provided at this stage, then the court may so order, even if it is clear that it would be supplied later”.
There was still no proper response to the Part 18 Requests so the Claimant made an application to compel responses with the request that the application be dealt with at the CCMC. At the CCMC, the Defendant sought haematological evidence as to whether it was advisable to stop Aspirin prior to surgery and whether there would be an increased risk of haematoma if it was not stopped. The Claimant’s position as to that evidence was that it was premature until the Claimant was aware whether the surgeon knew (probably not) and whether he would have proceeded if he did know (again, probably not).
At the CCMC, the Master agreed that these were factual issues which would narrow the issues and ordered the Defendant to respond.
The Defendant did not do so but made an increased offer of £1,150,000 which was accepted.
Comment
Whatever the evidence as to cessation of Aspirin therapy prior to major spinal surgery might be (which presumably an expert haematologist could comment upon), the Claimant’s expert neurosurgeon was of the opinion that most surgeons would not take the risk of undertaking surgery when Aspirin had been stopped only five days before planned elective surgery when it could easily have been re-scheduled. The issue of whether it would be a breach of duty to continue with surgery in these circumstances is neither here nor there. Not to be aware would likely be a breach of duty (and there was no evidence the surgeon was aware) and thereafter the question is simply one of factual causation.
If the surgeon had answered that “yes, I was aware but would have continued nonetheless” then haematology evidence may be relevant. If the surgeon had answered that “no, I was not aware but even had I been aware, I would have continued” then again, haematology evidence may be relevant.
In all likelihood, however, the surgeon was not aware and, had he been, would not have continued with the surgery on that day but would have re-scheduled it; there was no urgency for the initial elective surgery. This was the Claimant’s expert neurosurgeon’s strong supposition.
The only outstanding matter would be causation. Following Pomphrey, the Claimant would need to demonstrate a materially different risk in relation to the development of a haematoma. Bearing in mind that the purpose of stopping Aspirin is precisely to avoid the risk of bleeding, including a haematoma, it appears highly likely that there would be an increased risk.
The case demonstrates the procedural power of Part 18 Requests for Further Information to compel a defendant to respond to the case as presented. Once the Court had ordered that the Part 18 Requests must be answered, there was no way for the Defendant to avoid the repercussions of the straightforward factual allegations. This resulted in a significantly increased offer since the Claimant would not have suffered a haematoma at all.
Solicitor the Claimant: John Gomersall, Glynns Solicitors.
Counsel for the Claimant: Justin Valentine.
Justin Valentine is head of the Clinical Negligence team at St John’s Chambers. He has a specialism in Cauda Equina Syndrome cases. Find out more about his practice here