How to win a cauda equina claim ' Q&A with Richard Money-Kyrle, a CES specialist and partner at Boyes Turner

Delayed treatment of cauda equina accounts for a large proportion of the cost of negligence claims against GPs (general practitioners). As in all emergency situations, NHS teamwork is required. Delays and resultant injury can arise at each step of the way causing permanent disability to the patient. Hospital services must be equipped, properly manned and ready to accept urgent CES referrals, perform scans and surgery before the patient suffers irreversible damage.

Whilst cauda equina might begin with an innocuous accident or a slipped disc, where delays or errors in GP, hospital or surgical treatment lead to a lifetime of disability, the patient is entitled to compensation for the avoidable disability and its financial consequences.

Claims for cauda equina are complex and require specialist legal expertise if the patient is to recover their full entitlement to compensation.

A recent article published by the BBC brought awareness to how critical early diagnosis of cauda equina is, and how failing to identify and treat it is costing the NHS hundreds of millions a year.

Richard Money-Kyrle, a CES specialist and partner in Boyes Turner’s medical negligence team regularly achieves substantial compensation awards for clients disabled by cauda equina. Here we ask Richard to share his experience with us about what makes a successful cauda equina claim.

Richard, what is the secret to winning a cauda equina claim?

In almost every cauda equina claim the key to winning or losing is the factual evidence of the injured person. Unless the medical records note signs and symptoms of cauda equina syndrome and the medical practitioner then fails to arrange referral and investigations there will nearly always be a dispute on the facts. The way in which the court resolves the disputes of fact will almost certainly be the difference between a successful and failed claim. 

How do you make sure clients give the clear and subtle information needed by the court?

As expert solicitors in cauda equina claims, we know the issues the court needs to determine and the information required by the medical experts to form opinions on both the standard of medical care that was given and the consequences of failures in care. 

It is not enough for a solicitor to simply ask their client, “What happened?” They must understand the condition, how the condition develops, each stage of increasing injury and how that is experienced by the patient as well as the doctor’s duty of care. Only then can they ask the detailed questions which will bring out information which the client (or a non-specialist solicitor) may not realise is important but which is vital to the claim. Just as the patient relied on their GP to ask relevant, searching questions to distinguish this serious condition from ordinary back pain, a client with CES should expect this expertise from their solicitor. For example the client may not understand the importance in the timing of a subtle change in urinary function such as urgency, incomplete voiding, incontinence of urine, inability to pass urine, absent or present bladder sensation. The strength, speed and success of their claim may be affected if significant information is inadvertently left out of the client’s statement. 

When should the client’s statement be taken and what should be included?

The earlier in the litigation process that a full detailed statement is taken the better. If information needs to be added to a statement late in the proceedings, the defendant may challenge the patient’s evidence on the basis that their memory of events is not clear.

Extremely personal information relating to bowel and bladder function, sexual sensation, altered sensation in the buttocks, perineal area and lower limbs needs to be explored but we do this by setting out the client’s recollections clearly in a written statement. These are very personal issues which the client may not even have discussed with their close family. It is crucial to establish the evolution and timing of development of these symptoms. We have a team of experienced and supportive solicitors (both male and female) who understand that this can be difficult for clients and approach the discussion with great sensitivity.

The statement must set out the client’s best recollection and set out the limits of that recollection and the reasons for the recollection. The defendant will seize on any opportunity to argue that the client’s recollection should not be preferred by the court to the medical records, that the symptoms were such that the medical practitioner’s treatment was not negligent, or that earlier surgery would not have improved the outcome as the damage would have occurred before surgery should have happened. 

If the patient’s factual evidence has been taken without proper exploration of each symptom at each stage of events it can affect the strength of the client’s claim. The court can be left with the impression that symptoms were worse than they actually were, and decide that earlier surgery would not have made any difference to the outcome, or that the symptoms were not as bad as they actually were, and find that the doctor was not negligent

Can you use the evidence of family and friends to confirm what happened? 

Evidence from anyone the patient talked to about their symptoms can be extremely helpful in corroborating the timing and extent of the patient’s symptoms as well as what happened at medical appointments. 

How can I prove what I told the NHS over the phone?

Telephone calls to NHS helplines are recorded and transcripts of those calls can provide important evidence. Telephone records help us prove when and to whom calls were made as well as providing evidence of any symptoms set out in text or other messages. 

What medical evidence do you need to win a cauda equina claim?

If the claim relates to a GP failing to identify, record and act on signs and symptoms properly, an independent GP expert is required to comment on what a reasonably competent GP should have done. Standard practice changes over time, so the GP expert will need to consider the standards that were in place at the time of the patient’s symptoms.

The GP expert doesn’t decide whether the medical records or the patient’s recollection are correct. Most cases settle without trial but if the case goes to court it is the role of the judge to determine conflicts of factual evidence. The GP expert’s role is to comment on the standard of care given to the patient based on the facts (which may need to be decided by the court.)

I clearly have cauda equina (CES) - Why is it important to prove what my symptoms were when I saw my GP and how they changed?

The patient’s signs and symptoms when they saw their GP dictate what action the GP should have taken. This is critical to every aspect of the claim. It affects whether they negligently failed to refer the patient urgently to hospital and whether they gave correct advice. It also affects whether correct treatment would have taken place soon enough to avoid all or part of the irreversible injury, which also affects the value of the claim.

If red flag signs and symptoms were present when the patient saw the GP, then almost certainly the court (and any GP expert) will say that the treating GP should have referred the patient to hospital for urgent investigation. 

If the court finds red flag signs and symptoms were not present, then the case will depend on the advice that the GP should have given. In our experience, GPs have tried to defend their failure to warn patients presenting with one-sided sciatica to watch out for CES red flags and to seek urgent medical help if these symptoms develop. The defendant GP may rely on the fact that they gave broad “safety netting” advice to the patient, telling them to return if things don’t get better or get worse.

The NICE Sciatica (Lumbar Radiculopathy) Guidelines are a good indication of the minimum standard of care at any particular time. Since 2009, these guidelines have advised doctors to ‘advise the person to seek urgent review if they develop symptoms suggestive of cauda equina syndrome, such as:

• saddle anaesthesia or paraesthesia;
• bladder dysfunction (distension, incontinence);
• faecal incontinence;
• severe or progressive bilateral neurological deficits in the legs’. 

This can only be done if the doctor lists the possible symptoms to the patient/.

The 2017 guidelines update the red flag signs and specifically tell the doctor to ‘advise the person to report any red flag symptoms and signs’. The updated red flag signs include:

• ‘bilateral sciatica;
• severe or progressive bilateral neurological deficit of the legs, such as major motor weakness with knee extension, ankle eversion, or foot dorsiflexion;
• difficulty initiating micturition or impaired sensation of urinary flow…;
• loss of sensation of rectal fullness….;
• perianal, perineal, or genital sensory loss (saddle anaesthesia or paraesthesia);
• laxity of the anal sphincter.’

Can I claim against the hospital for cauda equina?

Yes. A claim for cauda equina should be made against whichever GP or hospital was negligent (and possibly both). The later the negligence in the sequence of developing symptoms, however, the more difficult it can be to prove that the permanent disability was caused by the failings in care.

Hospital protocols set out local practice requirements and are useful in identifying negligent mistakes.

• A&E cauda equina claims

Hospital claims for CES often depend on whether the A&E doctor acted in the way that a reasonably competent A&E doctor have done, and whether they did so within the correct time frame. A&E doctors should take a detailed history and perform a full examination. They should refer the patient for appropriate investigations, such as an (MRI) scan, and to spinal or neurosurgical specialists. 

Mistakes can occur if the doctor does not perform an adequate examination, such as failing to test anal tone or perineal sensation, or fails to take a detailed history and fails to recognise that signs and symptoms when taken together require urgent MRI and spinal/neurosurgical referral. 

• Radiology cauda equina claims

Occasionally, a CES claim may arise from an MRI scan which was misreported. This is more likely to happen if the radiologist is not given necessary or accurate clinical information to assist in interpreting the scan. 

• Surgical cauda equina claims

When evolving cauda equina syndrome is diagnosed, surgery must take place as soon as possible. Surgery might be delayed if the patient has developed full urinary retention and has lost bladder sensation, faecal constipation, and full loss of saddle sensation on the basis emergency surgery would be unlikely to improve the outcome, however, if there is any prospect of preventing further damage emergency surgery must take place. 

In surgical negligence cauda equina claims, we ask neurosurgical experts to advise on the timeframe within which surgery should have taken place and whether there was any negligent delay surrounding the surgery which the patient received. 

The expert will also advise on the extent to which earlier (correctly timed) surgery would have improved the patient’s long-term outcome. The expert will base this assessment on the factual evidence about symptoms the patient was experiencing at each of the relevant times. The timing and extent of loss of sensation with urination, urinary incontinence, urinary retention and loss of bladder sensation are key, as are details of bowel function and sensation, buttock, perineal, and genital sensation, lower limb paraesthesia and function. Surgery within six hours of developing symptoms can allow the patient to recover some function or sensation. Later surgery will prevent symptoms getting worse. 

Surgical cauda equina claims can also arise from mistakes which happen at surgery, for example where there is incomplete release of the impingement on the spinal cord. Where the claim relates to a surgical mistake, the surgical experts will comment on the surgical standard of care and the consequences of any mistakes. 

How do you value a cauda equina claim? How much are CES claims worth?

Before we can value the claim, we must establish what the likely outcome for the client would have been if they had received proper treatment. The originating cause of the cauda equina, even if correctly treated, might have left the client with some long-term and non-compensatable injury in any event. It is important to assess how any unavoidable injury would have affected the client’s life, if at all, as this element of the client’s injury was not caused by the GP or hospital. Compensation will only be awarded for the additional (negligently caused) injury, disability and its consequences.

The financial impact of the injury is specific to the individual and depends on their own personal circumstances. We work closely with our clients to understand the way their CES disability has affected them. Evidence of their losses will need to be presented to the court in detailed statements from the client, their family, friends, carers, employers and any other relevant witnesses.

As our client’s compensation must take account of their long-term prognosis (predicted outcome) and meet their needs into the future, we obtain medical expert evidence which sets out the client’s likely long-term prognosis, treatment options, and the cost of meeting their needs. Expert evidence may be required from a wide range of experts including:

• care
• occupational therapy (OT)
• neurosurgery
• urology
• colorectal surgery
• physiotherapy
• accommodation
• employment
• psychology/psychiatry

Compensation awards vary and reflect the individual circumstances of each claimant but can range from under £100,000 to substantially in excess of £1,000,000.

If you have suffered disability from negligent treatment of cauda equina and would like to find out more about making a claim, contact us by email at mednegclaims@boyesturner.com.