By William Bremner, Technical Consultant – Litigation, Medical Protection
Dr N, an experienced GP, contacted Medical Protection for assistance in respect of a clinical negligence claim relating to her alleged failure to refer her patient, Ms D, immediately to hospital when she had attended Dr N in surgery, allegedly exhibiting red flag signs and symptoms of cauda equina syndrome.
Ms D had a complicated medical history, and had been diagnosed with cauda equina syndrome (CES) ten years earlier. That episode had resulted in her undergoing discectomy at L4/5 L5/S1, following which she had been left with persistent right foot drop, continuing low back pain, difficulty passing urine and terminal micturition incontinence.
Ms D presented to Dr N with thigh pain and possible nerve root irritation. Ms D claimed that she gave a history to Dr N of saddle numbness at this consultation but Dr N was adamant that she did not. Dr N remembered examining Ms D to exclude cauda equina red flags, but Ms D claimed that no examination had been performed at the consultation. Unfortunately the clinical note of the consultation made by Dr N was brief and did not record the examination, nor the absence of red flags for CES on examination and questioning.
Dr N also recalled that two fourth year medical students were on a placement at the surgery at around the time of this consultation, and had some recollection of one of them being present in the disputed consultation with Ms D. However, it was felt most unlikely that they would be traceable, or that they would have any useful recollection even if they were to be found. Before Ms D left the consultation it was Dr N’s recollection that she told her to seek urgent further advice if her symptoms got worse, and specifically if she felt numb in the saddle area or started to have difficulty passing urine. Ms D denied that any such safety-netting advice had been given.
Dr N then sent a same day request for an urgent MRI scan to be undertaken; the local hospital provided an appointment for an “urgent” scan some four weeks later. Dr N had ticked the ‘red flag’ box on the faxed MRI request form. Ms D alleges this was because there were recognised red flags for cauda equina syndrome present at that day’s consultation, however Dr N stated that she only ticked the box as a means of expediting the scan in a system that she knew could otherwise be slow, given her understandable and reasonable anxiety to exclude cauda equina syndrome, in light her previous history of having suffered the condition in 2002. Dr N felt that despite the absence of any specific red flags on this occasion, this history merited the scan being expedited.
The MRI request was received by the hospital, and Ms D rang to enquire about the date that had been arranged for her MRI appointment, and she was told that the wait would be four weeks. Ms D considered this length of wait for her MRI to be unacceptable and contacted the GP surgery in respect of this. A message was passed to Dr N, who wrote a further letter to the hospital asking if the scan could be undertaken sooner. This letter was faxed on the day following the initial consultation. During a series of exchanges, Dr N passed on a message to Ms D that if her symptoms were becoming unbearable, another option would be to present to the Emergency Department, which might result in her being investigated sooner. Ms D did not do so.
Significantly, as part of her attempt to expedite her MRI scan, Ms D had two telephone discussions with a public helpline during the day after the consultation with Dr N. The recordings of these calls were still available and were obtained by Medical Protection. The recordings revealed that despite Ms D’s obvious desperation to bring forward the date of the MRI scan, she made no mention of any symptom of saddle numbness, or urinary or bowel dysfunction during the course of two calls, despite having undergone surgery for CES previously in 2002 and therefore presumably being aware of the significance of these symptoms.
During the three days following the consultation with Dr N there were several calls to the administrative staff at the GP practice, which were all noted on the internal practice messaging system and read by Dr N. None of these messages mentioned any complaint of saddle numbness or urinary or bowel dysfunction.
A review telephone consultation was arranged for Ms D with Dr N on the fourth day following the initial consultation.
Ms D claimed that her condition deteriorated on the day before the telephone review, when she developed a urinary leak. Her evidence was that she contacted the practice and requested to speak to Dr N, who was not in the practice that day. We did not accept that this call was made. It was felt that our stance was supported by the fact that there was no note on the practice internal messaging system, despite the previous messages from Ms D having been noted in great detail on the system. It would therefore have been out of keeping with the demonstrated practice policy for a significant reported symptom such as the development of urinary incontinence to have been ignored, or left 24 hours for Dr N to deal with the following day, had such a new symptom indeed been reported to the practice.
Dr N spoke to Ms D by telephone as arranged. Ms D reported that her symptoms had worsened since the initial consultation. The pain was now in both groins and medial thighs. She had pins and needles in both feet. She was not able to open her bowels because of pain, and felt the need to pass urine all the time. Dr N realised that the symptoms described did now constitute potential red flag symptoms for CES, and immediately telephoned to arrange an immediate emergency admission to hospital, when an MRI scan was performed and CES diagnosed. Interestingly the notes revealed that that even on this occasion (four days after the red flags for CES had allegedly been missed by Dr N at the initial consultation) there was no subjective complaint by Ms D recorded in the hospital admission note of saddle numbness or urinary incontinence, despite the fact that the central allegation in relation to the initial consultation is that saddle numbness was reported to Dr N by Ms D and ignored.
It was alleged that as a result of the delay, Ms D had been left with impairment of urinary function, a reduction in sexual function and increased back pain. Ms D claimed that all of these problems would have been avoided entirely or much reduced had Dr N arranged same-day hospital admission for investigation for CES at the first consultation. The experts instructed for Dr N accepted that Ms D would have avoided these chronic problems had she been admitted to hospital and operated upon following the first consultation, but they did not agree that there was any indication to admit Ms D to hospital based on the findings at that consultation.
How Medical Protection assisted
The decision to defend or settle the case was initially finely balanced. Expert evidence obtained on Dr N’s behalf was supportive. We were advised that she had acted reasonably if her version of events were accepted by the court. However there is often considerable judicial sympathy for injured patients in this type of case, and there can be the tendency for the court to prefer the evidence of the patient where the consultation was in private, and there is no further evidence available to corroborate the version of events contended by the patient or doctor respectively.
Fortunately in this case, during the course of our investigations into the case, we were able to build a number of pieces of strong circumstantial evidence, which together proved decisive in favour of Dr N.
Firstly, the review of the practice messaging system showed that despite several messages being left by Ms D in the days after the consultation, none of them mentioned the red flag symptoms that she claimed had been present when she saw Dr N. Furthermore, there was no note of any message left on the day on which she claimed to have telephoned the practice to report the development of urinary incontinence.
Secondly, we were able to obtain the recordings of both of Ms D’s telephone calls to the public helpline on the day after her consultation with Dr N; in neither call did she report the red flag symptom of saddle numbness that was claimed to have been missed the previous day. Our expert evidence was that this symptom would not have fluctuated and would have still been present had it been present the day before.
Thirdly, it was felt that the fact that Dr N had immediately been alert to the CES red flags which were reported to her at the telephone review with Ms D four days after the initial consultation, and arranged immediate hospital admission, made it inherently unlikely that she would have been oblivious to the importance of the saddle anaesthesia that Ms D alleged she had reported on specific questioning at the first consultation.
While all these pieces of circumstantial evidence were helpful, and favourable to Dr N, there remained a crucial allegation made by Ms D in respect of the first consultation, which, if established against Dr N, would be a breach of duty and would have been likely to result in the case being lost. This was the allegation that she had not examined Ms D at that consultation. Dr N was adamant that she had done so, but the clinical note was not conclusive.
Therefore, only a few months before trial, it was decided to make an effort to track down the student doctors who Dr N recalled possibly having been present on the day in question. Our investigations soon tracked down one of the doctors, who was now a specialist trainee. To our surprise she had a vivid memory of the day in question, and was willing to co-operate and give evidence in court if necessary. She recalled being in the room with Dr N and being asked to examine Ms D, but that she had struggled to do so effectively, with Dr N having taken over the examination. She also clearly remembered Dr N testing her on the red flags for CES that day. This witness’s vivid memory of the day in question was the last piece of the jigsaw required to consolidate Dr N’s defence, and showed beyond doubt that she had indeed examined Ms D as she had always maintained, and also that she had had the red flags for CES clearly in mind at the time of the examination.
Once the student doctor was traced, and her evidence was admitted in the case, it became clear that Ms D had very little prospect of success should the case proceed to trial, as the factual evidence was now overwhelmingly in favour of Dr N. Accordingly, only days before trial, Ms D agreed to discontinue her claim against Dr N, and also agreed to pay 80% of Dr N’s legal costs of the claim. Had Ms D succeeded in her claim at trial it is likely to have resulted in a seven-figure award of damages.
Dr N’s clinical note of the consultation was brief and did not explicitly record her examination of Ms D, or specifically record the absence of saddle numbness, urinary and bowel symptoms. Had it done so, the claim is unlikely ever to have been brought.
By careful gathering of the available circumstantial evidence from various sources we were able to build a reasonably strong defence for Dr N, despite the brief and incomplete note. The defence was strengthened further when we had the good fortune to contact the student doctor who was able to corroborate Dr N’s account of the first consultation, making Ms D’s allegations unsustainable.
While Dr N was somewhat fortunate that we were able to piece together the evidence to deflect the claim against her in this case, a full clinical note of a consultation where the GP had clearly suspected that CES was possible would probably have avoided the stress of her facing unfounded allegations, and being involved in several years of litigation before her eventual vindi