The case of Jarman provides an interesting exposition of the Bolam test. In this case, the Defendant was found to not have been negligent in failing to refer the Claimant for an emergency MRI.
The Claimant injured her back in a work accident on the 17th February 2015. She reported lower back pain persisting for several months with pain radiating down her right leg for a period of two weeks. She had a weak pelvic floor and leaked urine when coughing. The Claimant visited her GP who investigated possible symptoms and signs of Cauda Equina Syndrome (CES). The GP noted that the Claimant “had normal control of her bowels, no perianal numbness, normal saddle sensation…normal power in both legs, and normal anal tone”. Given these findings, the GP suspected a disc prolapse, explaining “red flags” for CES, prescribing pain medication and physiotherapy. On the 3rd March 2015, the Claimant attended the GP again who advised immediate attendance at A&E on account of increasing numbness around her S3 vertebrae (para 13).
The Claimant was examined by the Defendant at A&E. The examination notes detailed a deterioration in back pain, burning in the right hamstring, and around the genitalia. The Claimant reported no leg weakness. In evidence, Mr. Khan (the registrar who performed the examination) accepted these were “very worrying symptoms and lots of them” (para 16). Mr. Khan looked for CES, but found that she had no loss of perianal sensation, good anal tone, and a normal result to a bladder test; he did not consider that there were clinical signs of CES and recorded: “no evidence of cauda equina”. Mr. Khan planned for the Claimant “[to come in] for MRI in next few days…If symptoms deteriorating, go to A&E.” (Paras 18,19). A junior doctor, Dr. Chan, then referred her for an MRI on a “routine” timescale. The Claimant’s MRI was performed on the 18th of March 2015, with results indicating probable CES as she had a prolapsed disc compressing the right anterior cauda equina. On 21st March 2015, she underwent spinal decompression surgery, but unfortunately the surgery did not prevent her from suffering permanent neurological damage.
It was the Claimant’s case that the Trust breached its duty of care by negligently delaying the MRI scan. The Claimant argued a short timescale was inappropriate for the investigation of lumbar spine pain, it follows that the MRI was to investigate possible CES which permits the inference that Mr. Khan suspected a diagnosis of CES (para 24). The Claimant’s alternate case on breach of duty was that the Trust should have diagnosed her as having suspected CES and should have ensured she received an MRI before the 7th March 2015, which would have led to her being operated on by the 9th March 2015. She alleged this surgical delay was causative of a worse prognosis.
The Defendant contended that the timing of the Claimant’s scan was apposite as she was not presenting with symptoms of CES on examination by Muhammad Khan, a specialist orthopaedic registrar. Further, the Defendant contended that a delay in surgery from 9th March 2015 to the 21st March 2015 was not causative of additional injury to the Claimant.
Coppel J did not accept that the Trust diagnosed the Claimant as having suspected CES, accepting Mr. Khan diagnosed her as having suffered a disc prolapse with no signs of CES. Turning to the alternative, Coppel J applied the Bolam test noting the question was whether “there is no body which would have supported arranging a scan for a patient in the apparent condition of the Claimant on an “urgent…timescale” rather than an immediate/emergency scan (para 37).
No criticism was made of Mr. Khan’s examination of the Claimant: “it was common ground that she had no signs [of CES]” (para 39). In addition, there were no medical guidelines in 2015 which mandated an MRI on an emergency basis for a patient with symptoms but no signs of CES, and the threshold for scanning was higher in 2015 than by the date of trial. As a result, Coppel J found that the Defendant was not negligent for failing to diagnose the Claimant as having suspected CES and referring her for a scan on or before 7th March 2015 (para 49).
Coppel J was, in part, influenced by the reasonableness of the conflicting expert evidence. The Claimant’s expert in orthopaedic and spinal surgery undermined his credibility by opining that a scan within 48-72 hours would have been “the medically correct treatment of this patient” if CES had been suspected but later agreeing that he would have sent a suspected CES patient for an emergency MRI and subsequently accepting under cross-examination that “there would be no logic in delaying it” (para 45). By contrast the Defendant’s corresponding expert adopted measured positions and provided logical and reasonable explanations for his conclusions (para 46).
Given Coppel J’s conclusion that there was no breach, consideration of causation became academic. Noting that contrary to advice that the Claimant ought to return to A&E if her condition deteriorated, she did not, in fact, return to A&E between the 3rd and 21st March 2015. Coppel J found this to be “contemporaneous evidence that her condition did not significantly deteriorate during the period 10-19 March 2015” (para 57). In the absence of further evidential support, Coppel J would have “rejected the claim on the basis that relevant delay in treating the Claimant did not cause any loss” (para 71).
Imogen Egan, a barrister in our clinical negligence team commented on the case as follows:
“Though this is a case which turns on its facts, the decision serves as a reminder of the need to robustly test an expert’s evidence before trial. The Claimant’s orthopaedic and spinal expert was found to have fundamental flaws in his evidence as a result of ‘framing his position to fit’ the Claimant’s case. By adopting an unsustainable position on one issue, inevitably, the expert undermined the totality of his evidence in the eyes of the trial judge.
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