Mrs P was a 42-year-old housewife who lived with her husband, daughter and their first grandchild. She had suffered with chronic lower back pain for many years, which was helped by regular paracetamol. She had struggled with flare-ups over the years, usually after gardening or lifting the shopping. Symptoms always settled within a few days with co-codamol or ibuprofen prescribed by her GP.
Mrs P had been looking after her granddaughter and had lifted her rather awkwardly into the car. This aggravated her back so she took some co-codamol she had at home from the most recent flare-up. When this failed to relieve the pain, she made an appointment with her GP. She was unable to lift her granddaughter because of pain in her lower back. He prescribed ibuprofen and arranged a follow-up appointment in a week. He referred her to physiotherapy because of the frequent exacerbations.
Her pain became more severe through the week. She took the co-codamol and ibuprofen but couldn’t manage the pain. By the Friday evening she was in tears and her husband suggested she ring the out-of-hours GP service. She was put through to a triage nurse who noted her history of long-standing back problems and worsening pain. The nurse advised Mrs P to keep mobile and to see her GP again after the weekend but her husband demanded that she saw a doctor that evening. The nurse documented that she “would like to see a doctor for stronger meds” and made her an appointment to see the out of hours GP, Dr M, that evening.
Dr M reviewed the triage nurse’s history, in particular the lack of any noted red flags. He documented that she had complained of pain over the coccyx area and that she had claimed she could not sit or lie down due to pain. He therefore examined her standing and noted an absence of spinal tenderness except over the coccyx. He prescribed some dihydrocodeine to help her manage the pain and asked her to ring back if the situation worsened.
On the Sunday, Mrs P became anxious because she felt completely numb at the bottom of her back. She rang the out-of-hours service again and spoke to a triage nurse. She explained that she “felt so numb she couldn’t feel the toilet seat beneath her and that she couldn’t feel the passing of water”. She was also very embarrassed but mentioned that she had been dribbling urine without being aware of it. She explained that despite taking the dihydrocodeine she had developed severe pain at the back of her right leg and near her ankle. She wondered if the dihydrocodeine had constipated her because she was unable to open her bowels. The nurse documented the history and advised her to see her own GP in the morning and to keep the physiotherapy appointment that was pending the following week. She gave her advice on taking senna and lactulose for the constipation.
Mrs P had a dreadful night. She couldn’t sleep because of the pain and when she tried to walk to the toilet she noticed that her right leg felt “floppy” and that she could not feel the floor with her right foot properly. Her husband took her straight to her own GP surgery on Monday morning. Her own GP took a history and examined her, documenting an absent ankle reflex, a straight leg raise which was reduced on both sides and weak anal tone. He diagnosed probable cauda equina syndrome and arranged for an urgent assessment with orthopaedics. His referral letter stated that she developed the numbness and the voiding difficulties the day before.
The orthopaedics team saw her the same day, also noting that her symptoms suggestive of cauda equina had started the day before. They catheterised her due to retention and arranged an MRI scan of her lumbar spine. The MRI showed a massive L4/5 disc prolapse causing severe central canal stenosis and also impinging on the traversing right L5 nerve root. Mrs P subsequently had an L4/5 decompression and discectomy and partial L4/L5 laminectomy.
After the surgery, Mrs P was seen in the spinal clinic. She had no true urinary incontinence following the retention although she still had some difficulty in assessing when she had finished passing urine. Fortunately she had full control of her bowels. She was still upset about worsening right leg pain, which was severe.
Mrs P made a claim against the out-of-hours service, firstly against the nurse for failing to triage appropriately and secondly against the GP, Dr M, for failing to recognise and promptly refer her cauda equina syndrome. She claimed that she had had the cauda equina symptoms on the Friday that she consulted Dr M.
Medical Protection sought the opinion of a GP expert who was not critical of Dr M’s consultation on the Friday evening. The triage notes did not indicate any problems with new symptomatology, specifically no mention of any development of radiation of the pain, altered sensation or problems with micturition and bowels. It was agreed that the limited examination in the absence of these symptoms was reasonable. It was also considered that Dr M’s prescription for stronger analgesia was effective since the patient did not contact a doctor the following day. It was, however, agreed that the triage nurse was in breach of duty on the Sunday when she recorded red flag symptoms and failed to pass the call onto a doctor.
Mrs P’s contemporaneous medical records were analysed carefully. It was agreed that the major deterioration in her condition occurred on the Saturday. Dr M’s records, the GP’s referral letter to orthopaedics and the orthopaedic team’s records all contradicted the claimant’s account and indicated that she did not have symptoms of cauda equina syndrome at the time of consulting Dr M.
Medical Protection represented the out-of-hours provider and the claim was settled with respect to the triage nurse’s breach of duty. Dr M, however, was successfully defended and not found liable.
Mrs P was seeking very substantial damages because she alleged that she could no longer live in her current home and needed to move to a specially-adapted bungalow. She claimed she needed an electric scooter, could not walk unaided, and that she needed constant care both day and night. Medical Protection engaged a surveillance firm to observe the claimant. Over a period of time they assimilated evidence: photographing the claimant carrying a young child, picking up and moving boxes, folding a child’s buggy against her leg, walking without any aids, and carrying a basket of heavy shopping with one hand and waving with the other. The claimant’s legal costs were being paid by public funding. Medical Protection wrote to the Legal Service Commission regarding the evidence and funding was withdrawn. The claim was originally for damages in excess of £2 million but was settled for a fraction of that amount.
- Doctors should record the particular red flags that are absent – it is important to record both relevant positive and negative findings in the history and examination.
- When a healthcare team experiences such an incident where a patient has suffered a considerable harm as a result of a delay in diagnosis, the team should conduct an SUI – serious untoward incident – review. The team should get together and see what lessons can be learnt to prevent similar incidents happening again. There may be issues, for example, for the out-of-hours (OOH) centre – eg, the triaging by the nurse – was she working to a script? In which case the script might be at fault. If so, it might need reviewing. Nurses/GPs working in OOH needs to be appropriately trained and qualified.
- In such cases, the danger for the patient’s registered GP is that with a long-standing back problem he needs professional discipline to ensure that he or she repeatedly checks his patient is also aware of what the red flag symptoms are. It is all too easy with chronic back pain patients to simply focus on analgesia control, rather than what to look out for and contact the doctor urgently about.
- Surveillance is a useful and legitimate tool that Medical Protection can use to strengthen the defence of a claim.
- Doctors should keep clear, accurate, and legible records. It is important to keep contemporaneous notes. The defence in this case was partly based on dates and times of symptoms recorded in the medical notes.
- Remember that referral letters add to consultation notes. They contain important clinical and medicolegal information and should be copied in patients’ medical records. This case was defended partly on information written in referral letters.
- Although Dr M was not criticised, it is still a useful reminder that doctors should take and document their own history from a patient and not rely on someone else’s account.
- This case illustrates that the claimant also runs a litigation risk when pursuing a claim. The general rule in litigation is that all claimants and all defendants are jointly and severally liable for all costs awarded against them.