In this case report, Head of Clinical Negligence, Justin Valentine, counsel for the claimant, discusses a recent cauda equina syndrome case where an allegation of deliberate concealment by the claimant’s surgeon was made thereby engaging section 32 of the Limitation Act 1980.
Background
T suffered back pain for a number of years. In 2005 after worsening bilateral sciatica she opted for decompression surgery for a large central disc protrusion at L4/L5. She had, at that time, no urological nor bowel dysfunction and no neurological deficit to her legs or feet.
After surgery T felt the need to pass urine but could not. She also had decreased sensation of the dorsum of her feet bilaterally. She was catheterised and 2,200 ml removed which indicates a grossly distended bladder and that she had developed urinary retention. She was incontinent of faeces and was not aware of passing faeces.
Despite these dramatic changes to T’s neurological function, no post-surgical MRI scan was undertaken which the expert spinal surgeon instructed on T’s behalf described as “bizarre”. CES consists of compression of the cauda equina, the bundle of nerves below the end of the spinal cord. If it is not relieved promptly permanent disability may result. It is usually caused by disc herniation but can also be caused by haematoma, particularly after surgery, causing compression of the cauda equina. An MRI can identify a haematoma which can be removed in revision surgery thus restoring function but only if undertaken swiftly.
Four days after surgery, the medical notes recorded that a junior doctor queried with the surgeon whether an MRI should be undertaken but was advised “not to do it at this stage”. At no point was any consideration given to CES whether caused during surgery or by haematoma. Failure to undertake an MRI in the context of significant post-surgical neurological deterioration flies in the face of common sense and accepted medical practice.
T was discharged with, according to the medical records, advice to undertake self-catheterisation though this was not mentioned to T and she was not provided with catheters. In a clinic letter to a gynaecologist (not sent to T or her GP) the surgeon wrote that prior to surgery T had a cauda equina problem (which was untrue) and that the surgery was “very difficult” though the operation note made no mention of any difficulty. The surgeon queried, within the clinic letter, whether T had “some kind of stress incontinence and she has to have abdominal pressure to empty her bladder”. At clinic, the surgeon implied to T that her symptoms were normal and that her weight was implicated in her symptoms.
In a subsequent clinic letter, the surgeon noted that her bowel and urinary problems were “sorted”, which again was untrue.
T spent years voiding urine with forceful abdominal contraction. Since she was not voiding completely she experienced frequent urinary tract infections. She would pass stool whilst forcefully voiding urine. Subsequent to advice to undertake self-catheterisation in 2017 she was unable to evacuate her bowels and commenced manual evacuation. Her right foot remained nearly completely numb.
In 2019, ie some 14 years after surgery, T had an appointment with a physiotherapist who mentioned that he had seen a number of clients who had been operated upon by her surgeon and that he had heard that the surgeon was no longer undertaking spinal surgery due to the number of complaints against him. He informed T that in his view she had developed CES which was the first time this was mentioned to her. She sought legal advice.
T alleged, in particular, (1) failures in relation to the surgery itself (insufficient enlargement of mini fenestration) and (2) a failure to undertake an emergency MRI in light of new, progressing and major neurological complication which represented a serious breach in medical management.
In relation to causation, she alleged that if the surgery was not complicated, as implied by the surgical note, then injury was sustained afterwards, eg by haematoma, which could have been remedied had an MRI been undertaken. Alternatively, if the surgery was complicated then the damage was caused by failure to enlarge the mini fenestration (and query why the operation note did not identify the difficulty). The two scenarios were not mutually exclusive.
T also advanced a case in relation to late catheterisation. 2,200ml urine is sufficient to cause permanent bladder injury in and of itself. It was always difficult to see how this could be defended save for limitation.
Limitation
The issue of date of knowledge is not straightforward in clinical negligence claims particularly where the patient knows that there has been an adverse outcome, ie significant injury, pursuant to section 14(1)(a) of the Limitation Act 1980, but is unaware whether this was attributable to any act or omission of the treating medical practitioners pursuant to section 14(1)(b) of the Limitation Act 1980.
Per Brooke LJ in Spargo v North Essex DHA [1997] PIQR P235, the knowledge required for section 14(1)(b) is a broad factual knowledge of the essence of the causally relevant act or omission, a claimant has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case. The question is a subjective one, what did the claimant herself know. However, mere suspicion of a causal link does not constitute knowledge particularly if it is vague and unsupported (Halford v Brookes [1991] 1 WLR 428 at 443).
Even if a claimant does not have actual knowledge she may have constructive knowledge pursuant to section 14(3) of the Limitation Act 1980 and claimants are not assisted by Lord Hoffman’s dicta in Adams v Bracknell Forest BC [2005] 1 AC 76 at para 47:
Section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of his injury to seek whatever expert advice is appropriate.
This is a rather circular test and has been benevolently interpreted in subsequent case law; see, for example, Dame Janet Smith’s comments in Johnson v MoD [2013] PIQR.
In the event, as well as date of knowledge and section 33 Limitation Act 1980 (the broad discretionary exclusion of time limits) arguments, on commencement of proceedings T also relied on section 32 of the Limitation Act which provides:
32.— Postponement of limitation period in case of fraud, concealment or mistake.
(1) Subject to [subsections (3) [, (4A) and (4B)]] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
- the action is based upon the fraud of the defendant; or
- any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or
- the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. [emphasis added].
The experts instructed by T were circumspect as to whether the surgeon was “covering up” by, in particular, purposively not ordering a post-surgical MRI scan (which would be a “deliberate commission of a breach of duty”). However, as an issue of fact this is not a matter for expert evidence save that the experts can say how unusual it was not to arrange an MRI after surgery. This they did (“mighty odd” and “bizarre”). They can also comment on the relevance of errors within clinic letters, eg the reference to T having cauda equina symptoms prior to surgery (which she did not) and whether that was consistent with an attempt to mislead (which it was).
Liability was denied within the Defence and it was also denied that there were new, progressing and major neurological complications despite the medical records demonstrating this. The Defendant did not respond to the allegation of concealment, in support of reliance on section 32 of the Limitation Act, since the later date of knowledge, the section 14 arguments, was admitted thus removing any issues of limitation from the case.
Part 18 Requests for Further Information were made and a Reply served. The Part 18 Requests noted the extent of neurological deterioration and raised a number of further inconsistencies and ambiguities within the Defence. The Defendant failed to reply to the Requests for Further Information and T’s claim was compromised on a 90/10 basis in her favour. Her claim subsequently settled at a joint settlement meeting.
Comment
Explicit allegations of deliberate concealment are unusual within the clinical negligence context and will rightly be treated seriously by a defendant. The factual circumstances in T’s case justified this step. Further, the allegations of concealment were pivotal in unravelling the false narrative created by the surgeon in which other medical practitioners had arguably been complicit. Although assisted by expert evidence, the decision whether to advance such a case must be that of the claimant’s legal team.
T’s solicitor: Lucy Winzer, Glynns Solicitors.
T’s counsel: Justin Valentine, St John’s Chambers, Bristol.
Justin is speaking alongside Mike Hutton (consultant spine surgeon and clinical lead for the NHS England programme Getting it Right First Time (GIRFT)) at our Clinical Negligence Conference on 6th November 2024 in which he will discuss the legal repercussions of the National Suspected CES pathway produced by GIRFT and issues that generally arise in CES claims. Find out more here.