PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENCE EVIDENCE

In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance.  The case is interesting for the frank assessment of expert witnesses. We see the judge’s rejection of the stance – and whole approach – taken by an expert coupled with the judge’s consideration (and rejection) of the submission that the principles in Keefe applied. (Some may say that it also shows the real risk of an insurer trying to seek an indemnity from the health service – but that is for others to judge…)

THE CASE

The claimant in this action had been the defendant in a personal injury action. They had been the driver of a car in which the claimant had suffered serious injuries, their insurer had paid out in excess of £3 million in damages.  In this action they sought an indemnity from the defendant health authority. The injured person had suffered spinal injuries.   The contribution proceedings alleged that the health authority staff had been negligent in the initial treatment of the spinal injuries and exacerbated them.

The judge found that there had been a breach of duty by the health authority. However this was not causative of any increased symptoms.

ASSESSMENT OF THE EXPERT EVIDENCE

The judge considered the contested evidence of the experts.
The Oral Evidence from the Experts
    1. All the experts confirmed the accuracy of their reports and were cross-examined.
    2. I heard first from Ms Peta Longstaff and then Ms Stevens, the emergency medicine consultants. Both are highly qualified and highly experienced practitioners who provided detailed and helpful evidence. I have no doubt that both of them were doing their best to assist the court when they gave their oral evidence. However, Ms Stevens was much the more careful and consistent witness and where their evidence conflicts I prefer hers.
Ms Longstaff
    1. Ms Langstaff explained the advantages of making a trauma call. It would mean that a team of three expert doctors, an orthopaedic surgeon, a general surgeon and an anaesthetist, would be made ready to assist.
    2. Ms Longstaff agreed when cross-examined that in 2011 there was no national guidance in respect of trauma calls and that the version produced by the Trust constituted reasonable practice by the standards of the time. She also agreed that if the criteria in sub-paragraph Criteria A-C were met, a trauma call should be made. By contrast, if Criteria D was met, staff should consider making a trauma call. She agreed that only criterion d) applied here. That applied if there were a road accident where the speed of collision was over 40mph.
    3. Here there was conflicting evidence about the speed of the collision. The ambulance crew appeared uncertain about speed. At 10.35, Ms Guy recorded that the accident had a combined speed of 60mph and it appeared she was obtaining that information either direct from XXX or via XXX’s mother. She agreed that the decision whether or not to initiate a trauma call, where paragraph d) was applicable, involved an exercise of judgment. The fact that the accident involved speed over 40mph was one factor which the Hospital had to consider. In the light of those concessions, Ms Longstaff agreed that her expert report required amendments. She could not maintain the assertion that a failure to initiate a trauma call because of the speed of the accident was mandatory and a failure to do so was a breach of duty.
    4. Ms Longstaff maintained, however, that there were further considerations here which support the case for issuing a trauma call. First, the fact that XXX’s body displayed the “seatbelt signs”, bruising and redness in the abdomen area, which ought to have put staff on notice of the possibility of a spinal injury. Second, the fact that ambulance staff had contacted the emergency department at the Hospital to pre-alert them to the fact that a number of the injured in the road accident were being brought to Hospital, should have prompted consideration of whether the ED had sufficient staff to cope. She accepted, however, that that would not meet the requirements for a trauma call under the protocol.
    5. She agreed, however, that there were other features which needed to be considered in making a judgment about the need for a trauma call. First was the fact that the only complaint of back discomfort, made by XXX to the ambulance staff, was limited to an observation that her back was ‘sore’. Second, it was relevant that the ambulance crew recorded that they had palpated the spine without back or spinal pain being suggested. Third, it was relevant that XXX was able to self-mobilise after the accident. Fourth, the fact that the tests done by Nurse Guy on admission suggested normal power in the lower limbs mitigated against this being a case for a trauma call. Each of these, she conceded, weighed in the balance against the need for a trauma call.
    6. Ms Longstaff also said there was no evidence that she had seen that a trauma call had even been considered. Had it been considered it should have been made and there was no good reason why it was not done.
Dr Stevens
    1. Dr Stevens agreed that, given the Trust criteria, there was an obligation on the hospital to consider issuing a trauma call once Nurse Guy was told that the accident involved a collision at 60mph. She said it was also relevant that the department was already busy and so could have done with extra assistance.
    2. Dr Stevens said it was generally the senior nursing staff who would put out a trauma call. She said there were a number of ways of obtaining additional assistance without issuing a trauma call. For example, staff on paperwork duty could be called in to help. In her opinion, this was a capacity issue here and it was a judgment for the senior nurse in charge to decide as to whether the department was adequately staffed. She agreed there was no evidence in the written material that the judgment required under the guidance had in fact been exercised.
    3. Nonetheless, she regarded the trauma call as something of a blunt instrument and she did not think it unreasonable not to make the call. Relevant to the judgment staff had to make was the number of casualties and the personal circumstances of the patient including the fact that XXX had learning disabilities.
    4. Ms Stevens agreed that a high index of suspicion of spinal injury was required once there was a report of a road accident involving a lap belt. However, it was clear to her that both the ambulance and the medical staff had looked to see if there were signs of spinal injury. She would not expect the nurse conducting the admission examination to take a full history and conduct a full examination of every patient. Here the nursing staff had the reassurance of the observations of the ambulance staff and the absence of a complaint of pain. It was not reasonable to say that triage staff should go beyond the absence of back complaint and the absence of report from the ambulance crew to investigate whether there was a back injury. In her view, the ability of the patient to self-mobilise, and the absence of pain on palpation was highly reassuring. In the vast majority of patients with spinal injury there would be localised tenderness over the fracture.
    5. Ms Stevens said that there was a conceptual difference between a trauma call and staff applying a high index of suspicion. It was clear that the patient was lying flat on a stretcher during her time in Hospital and being log-rolled to move her, and there was no evidence that the patient was moved in a way that was uncontrolled or likely to cause spinal injury.
    6. Next, I heard from the neuroradiologists. Again, both are experienced and highly qualified experts. Again, however, the Defendant’s expert was much the more careful and convincing and, where they disagree, I prefer the evidence of Dr Good.
Dr Stoodley
    1. Dr Stoodley agreed that the locking of the facet joints meant that the upper part of the spinal column was not able to move backward following the index event. However, he said what was crucial was that the fracture dislocation was unstable. The fact that there was ligamentous dislocation meant that if XXX was flexed upright from a supine position, such as being sat upright, that would give rise to the possibility of the upper segments moving anteriorly. That would narrow the spinal canal and risk further compromising the spinal cord.
    2. In cross-examination, Dr Stoodley acknowledged there were some errors in his report. He agreed he had missed the corner fracture at T12. Initially, he said he must have seen that fracture but had failed to report it. It was pointed out to him, however, that he had positively asserted that there was “no other bony injury”. He said that the reason he had not reported this fracture was that he did not regard it as significant.
    3. Dr Stoodley agreed he had missed two other fractures. They were demonstrated by yellow arrows in the scans exhibited to Dr Good’s report. He pointed out that he was not asked to comment on the significance of any other fractures. I observe in passing that Dr Stoodley did not correct these errors when asked by the Claimant’s counsel whether he had any corrections to make, despite the fact that they were evident from Dr Good’s report.
    4. Dr Stoodley agreed that the injury here was a bi-lateral facet dislocation with the facets lying in a locked anterior dislocated position. He further agreed that he had made no reference to the fact that the facets were locked in either of his reports. That was not, he said, because he had missed that fact, but because that particular aspect of the injury did not seem to him especially relevant. It was put to him that the fact that the facet joints were locked in their dislocated position was highly relevant to the stability of the spine after the accident. He responded that what mattered was that the whole injury was potentially unstable. The locked position of the facets precluded their posterior movement but did not prevent anterior movement.
    5. Dr Stoodley agreed that the extent of the dislocation amounted to more than half of the width of the vertical body and that had the effect of narrowing the spinal canal. He agreed that the spinal cord was angulated and stretched. He agreed that the facet joints must have been locked at the time of the index event and must have remained locked until Mr Thorpe used significant traction to reduce the dislocation.
    6. Whilst I am sure that, for the main part, Dr Stoodley was attempting to assist me, I confess his analysis was unconvincing. It was regrettable that he should have made the errors noted above and more concerning still that he had not volunteered corrections to them. Most importantly, I regard his explanation for his dismissal of the potential significance of the fact that the facets were locked as close to disingenuous. When considering possible movement of the spine after the initial insult, the fact that movement in one direction was functionally impossible was, at the very least, worthy of comment.
Dr Good
    1. Dr Good gave evidence in accordance with her thorough and careful report. She was cross-examined at some length by Mr Martin but did not resile from any of her conclusions. She emphasised that she could only speak to the imaging but regarded it as highly likely there would be injury to the spinal cord as a result of the accident. She said the spinal cord became radiologically transected when the primary insult occurred. The facet could only be dislocated into the locked position if considerable flexion–distraction occurred at the time of the accident. She said the position of the locked facet joints remained unchanged until additional severe flexion-distraction force was applied.
    2. Dr Good said that the scan would have looked the same at the time of the accident as it did at the time it was taken. She said an MRI might have changed in that period because, although the position of the vertebrae would be the same, there would be more oedema over time.
    3. Dr Good explained that the injury was technically unstable but here, because the facets had jumped and locked, it was very hard to move the facets further anteriorly and almost impossible to move them posteriorly. Considerable force would be needed to move the facets back in place.
    4. She said the MRI scan demonstrated a collection of blood caused by blood oozing at the time of the injury. She could not say that there was evidence of expanding hematoma but hematoma visible on the MRI did add to the insult.
Prof Schapira
    1. Professor Schapira was an impressive witness in many ways, not least in his willingness to acknowledge the limitations of his expertise on facts such as these, and to defer to other experts when the topic took him outside his area of specialism. He made it clear that he is not an expert in spinal surgery but a neurologist with expertise in the function of the spinal cord. He said that the other three experts, Mr Jamil, Mr Mannion and Mr Thumbikat were experts in traumatic spinal surgery.
    2. Professor Schapira agreed that the reference by the paramedics to XXX being able to move her feet, and her movement when she was being undressed in Hospital, implied residual cord function. These were voluntary movements and if the evidence about them was accepted they demonstrated that residual movement was possible. He said that the transformation from some spinal movement to complete trans-section within two hours could be explained by developing oedema or the fact that the patient was not properly immobilised.
    3. He agreed that the accident caused injury to the cord and it was unlikely that XXX would have normal leg function thereafter. The cord would have been compromised from the outset. She would not have had normal leg function notwithstanding what Nurse Guy had observed. As to the rate at which the patient with spinal injury can deteriorate he would defer to others.
Mr Jamil
    1. I say straight away that I regard Mr Jamil as a thoroughly unsatisfactory witness. I indicated that that was my preliminary view to Mr Martin. He recognised the deficiencies in his evidence and did not seek to persuade me that my preliminary view was incorrect. The result of my assessment of Mr Jamil is that I do not regard it as safe to rely on his evidence on any issue where he differs from the other witnesses from whom I have heard.
    2. The deficiencies in Mr Jamil’s evidence were both numerous and fundamental.
    3. First, I have grave doubts as to whether he has the expertise necessary to provide comments on injuries such as the present. He told me he had not performed spinal surgery for more than six years. That in itself may be of no significance, especially in a case which related to treatment more than six years ago. However, I regard it as quite remarkable that he should have advised as he did, that this injury might be treated conservatively with bed rest and analgesia. As was agreed by all the other experts the only possible treatment for this condition was surgery. Mr Jamil sought to explain that by saying that he was referring to a patient with a simple Chance fracture, rather than a fracture dislocation with bi-lateral facet dislocation and locked facets.
    4. He described that in evidence as a “silly mistake”. In my judgment, it was a fundamental error. As Mr Counsell rightly submitted, either Mr Jamil did not appreciate that there was locking, (and it is notable that he does not refer to locking in any of the first three reports), in which case, he cannot be regarded as a competent witness in this regard, or he did appreciate it and failed to refer to it, in which case he would be in breach of his duty as an expert.
    5. The fact that this was a locked dislocation was plainly relevant since one of the issues I have to decide is whether, despite the injury, the spine could still move. If it were locked it could not move posteriorly.
    6. Second, it is apparent from his final report that he had by then appreciated that he was dealing with a locked dislocation. However, in that report he missed the fact that there were three fractures visible on the radiography. His explanation for that was that these were not important as these were not at issue. I regard that as a wholly unsatisfactory answer; any expert worth his salt would have recorded the fact of the fracture and explained why he did not think it was relevant.
    7. Third, he asserted that the MRI scan proved there was no expanding hematoma. It is self-evident that it did not do so. As the other experts agree, the MRI scan showed some modest hematoma and it is quite impossible to tell from a single scan whether or not that hematoma was expanding.
    8. Fourth, in the course of reports apparently directed towards causation, Mr Jamil volunteered his views relevant to breach of duty. Surprisingly, he did not defer on that issue to the experts instructed to consider breach of duty. More fundamental, it was apparent in the course of the evidence that Mr Jamil did not know what the test for breach of duty is in a professional negligence case. He only succeeded in articulating something approaching the correct test after it had been explained to him by Mr Counsell.
    9. That piece of incompetence was underlined by the fact that in a county court in March of this year, Mr Jamil had again been unable to articulate the test he was applying when advising that another doctor was negligent. His explanation to me for his inability to describe the Bolam test on the previous occasion was that he had had a mental block whilst giving evidence. That was palpable nonsense since he had made the same mistake in the course of contributing to a joint report in that earlier case.
    10. I also note with some concern that Mr Jamil appeared quite unable to appreciate, or at least to acknowledge, how serious these inadequacies were in an expert giving evidence to the court in a case relating to clinical negligence allegations. I regard Mr Jamil as a wholly unreliable witness.
Mr Thumbikat
    1. In the starkest of contrast with Mr Jamil, I found Mr Thumbikat a highly impressive and credible witness.
    2. He explained the pathology of damage to the spinal cord in detail and with clarity. He said that the initial area of damage is often very small. But over the following few hours that area of damage extends continually. He described how experiments with animals in the 1960s and 70s had demonstrated this phenomenon and how, more recently, MRI studies had showed similar progressions in humans. He described how the swelling of the cord occurs because of underlying macular damage which restricts the supply of oxygen to the cord leading to hypoxic damage. The result is that white cells and other inflammatory materials appear inside the cord. In time, they release chemicals which set up secondary damage.
    3. Mr Thumbikat referred me to literature on this issue, notably “Airway Management in Adults after Cervical Spine Trauma” by Crosby, and “The Cause of Neurologic Deterioration after Acute Cervical Spinal Cord Injury” by Harrop and others. Both those two papers describe injury to the cervical spine but, as Mr Thumbikat explained, there is no significant structural difference between the cord at cervical and thoracic level, and the pathology is the same. As he explained, the medical literature suggests that a small, but not insignificant, percentage of patients with spinal injury whose condition is well managed will go on to develop paralysis. The evidence suggests that with fracture dislocation the incidence of delayed deterioration is greater. This was a case of serious fracture dislocation. He says the risk of secondary damage has been recognised since the 1970s and is now well established.
    4. It cannot be argued, Mr Thumbikat contended, that the small numbers of cases in which such deterioration occurred means that the possibility of such changes is insignificant. On the contrary, Mr Thumbikat asserts, it is in cases of more severe injury that such deterioration is likely. It is true that much of the deterioration described in the literature involves rising levels of paralysis and commonly this takes significantly longer than the two hours in issue in the present case. But what matters, argues Mr Thumbikat, is that these cases demonstrate that it is perfectly possible for there to be less profound neurological symptoms immediately after an accident with worsening symptoms in the following hours.
    5. As to XXX’s treatment at the Hospital, Mr Thumbikat was of the view that propping her up, even with a single pillow or on an inclined trolley, was “not ideal” and such patients should generally be nursed supine. However, he did not think minor variations from the horizontal would be significant. The position would be very different if XXX had been sat up on the trolley with her legs over the edge.
    6. Mr Thumbikat agreed that if there was available in this case the results of a detailed neuro-examination after arrival at Hospital that would assist because it would make it easier to determine whether XXX was neurologically normal on arrival at Hospital or was suffering from neurological deficit which was not complete, or if Nurse Guy had made a mistake and there was no movement in the legs. In his view, however, it was likely there was some movement since it was observed by both the ambulance crew and Nurse Guy. It was possible, in his view, to estimate the level of power preserved in XXX’s limbs by reference to that which Nurse Guy describes her as being capable. It was Dr Thumbikat’s conclusion that deterioration was both inevitable and spontaneous in the case of XXX.
Mr Mannion
  1. If Mr Thumbikat can be described as being a very good witness, then Mr Mannion was quite exceptional. It was evident from early on in his evidence that he had a complete mastery of his subject. He had a singularly impressive curriculum vitae and is plainly a clinician of great experience and expertise.
  2. Most importantly for my purposes, he had recent experience of treating precisely the condition from which XXX suffers. He had had to perform an operation similar to that which Mr Thorpe performed on XXX when he was last on call and he still has the patient concerned on his wards.
  3. Mr Mannion told me that the question of stability and movement in this joint was the critical issue. He described how such fractures are graded A to C to describe their seriousness. C is the most serious and XXX’s was a type C injury. He described how the injury XXX suffered so distorted the thoracic spine as to introduce a ‘chicane’ in the spinal canal. He said the spine was not obviously unstable in flexion because of the notch into which the upper vertebra fitted in the lower one, and the supporting soft tissues. He did accept, however, that the spine could still have pivoted at the point of injury. Nonetheless, he said the cord here was so fundamentally damaged that it was difficult to contemplate any more damage. If XXX was managed properly with spinal precautions she would have been left lying on a bed in the same position as she adopted at the time of the MRI scan.
  4. He said it was possible that XXX could have some function in the spine for two hours after the accident and yet still suffer deterioration to the point of paralysis. Mr Mannion agreed that there are three possible explanations for the deterioration in XXX’s condition after she arrived at Hospital. First, there could be a failure to take appropriate precautions to prevent further damage to the spine. Second, there could be involuntary spasm. Third, there could be the existence of what he described as “vestiges of function” in the spine after the initial insult. He discounted the possibility of damage caused by further movement given the locked state of the dislocation in the absence of very significant force. Given the description of the “small fit” suffered by XXX he did not regard involuntary spasm as a satisfactory explanation.
  5. He said “final vestiges” was simply a description of what was occurring in the spine after the accident and, as to the mechanics of that, he agreed with and adopted, the reasoning of Dr Thumbikat.
  6. Finally, Mr Mannion provided his own explanation for the progression of symptoms in XXX’s spine. He explained that the trauma effected to her spine in the accident was not a one-off event. Because of the deformity of the spinal canal that followed the dislocation, the insult to the spine continued throughout the period prior to reduction by Mr Thorpe. The cord continued to be distorted out of its normal position and pressure on the cord as it went around the ‘chicane’ remained throughout. The effect of that would be to cause continuing damage to the spinal cord.
  7. In those circumstances, it was Mr Mannion’s view that paralysis was both inevitable from the time of the accident and the only cause of the deterioration of XXX’s spine during the day in question.

THE PRINCIPLES IN KEEFE

The judge also rejected an argument that the principles in Keefe applied.
  1. Against those findings, in my judgment, the principle identified by the Court of appeal in Keefe has no application.
  2. In Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 603, the Court of Appeal held that where a ship owner had breached its duty of care to take measurements of noise levels in its ships, the Court was to judge benevolently the evidence of the Claimant that he had been negligently exposed to excessive levels of noise on the ships, and the ship owner could not rely on the absence of measurements as evidence that the noise was not excessive.
  3. Mr Martin argues that by analogy with Keefe, as a consequence of the Defendant’s breach of duty here, no proper neurological examination was carried out on XXX at the Hospital. He says that, in addition, it is impossible to determine what would have been the outcome had spinal precautions been in place. He contends that the Court should be willing to accept, at face value, the nursing assessment that XXX had normal lower limb power on admission, and to infer that the deterioration to complete loss of limb power would probably not have occurred but for the Defendant’s negligence.
  4. I reject that argument. The circumstances of this case are very different from Keefe. It is common ground between the experts that XXX suffered some significant neurological damage in the accident so that her lower limb function would not have been normal. I cannot in those circumstances accept Nurse Guy’s assessment of normal limb power at face value. Nor on the evidence, am I entitled to infer that the deterioration to complete loss of lower limb power would probably have not occurred in the absence of the Defendant’s negligence. The hard, scientific evidence in the present case to contrary effect is compelling. Even if it could be shown that there was some movement of XXX’s spine which complete spinal precautions would have avoided, such movement would not explain the deterioration that was sustained. The sort of minor movements of XXX’s body which conceivably might have occurred, and which comprehensive spinal precautions would have prevented, do not explain the loss of limb power. Furthermore, and in sharp contra-distinction from Keefe, there is here evidence which does explain the deterioration in limb condition. That is the evidence of Mr Mannion and Mr Thumbikat.
  5. In those circumstances, Keefe does not avail the Claimant and her causation argument must be rejected. In those circumstances, this claim will be dismissed.