The path of a clinical negligence claim is often long and complex. The eventual outcome is affected by a number of key factors; MPS claims manager and solicitor Antoinette Coltsmann takes an in-depth look at a recent MPS case.

The case

Mr P, a high-earning, self-employed management consultant, attended his GP surgery

 on 10 July 2010 with flu-like symptoms and saw Dr A. He diagnosed a chest infection and prescribed antibiotics; on 15 July Mr P returned with similar symptoms – Dr A referred Mr P for a chest x-ray and prescribed further antibiotics. The x-ray was carried out the next day, after which another GP at the surgery, Dr B, advised Mr P that the x-ray was clear and that he could continue to take his medication.

On 21 July, Mr P was reassessed by Dr C, a locum consultant in infectious diseases. He made a note of a detailed examination in Mr P’s records. He concluded Mr P was suffering from muscular back pain, and recommended pain relief and a return visit to Dr A in two weeks’ time.

Two weeks later, on 4 August, Mr P reattended the surgery. Dr A noted some chest discomfort and made a referral to physiotherapy for the back pain, which took place five days later. The day after that, Mr P felt unwell and collapsed due to a loss of sensation in his legs. He was admitted to hospital. At the recommendation of the hospital consultant microbiologist, Mr P’s antibiotics were withheld and the following day he was transferred to another hospital, where an MRI scan was performed. This revealed infective discitis at T5/T6.

Mr P underwent an emergency laminectomy with open biopsy, where a soft tissue mass was submitted for histology investigations; once the biopsy samples were obtained antibiotics were recommended. Further surgery was carried out the same day and antibiotics (a combination of ceftriaxone and vancomycin) were administered. Following the surgery, Mr P was left with T4 ASIA A paraplegia. He underwent rehabilitation at a spinal injury centre.

The claim

Mr P made a clinical negligence claim against Drs A, B and C. He alleged that all three doctors failed to suspect a spinal infection and refer Mr P to an orthopaedic surgeon, who would have referred him for an MRI scan. It was alleged that the MRI scan would have identified infective discitis, which would have led to hospital admission and antibiotic therapy, avoiding Mr P’s paraplegia. Having obtained supportive expert evidence, MPS decided to defend the claim and the case went to trial.

The evidence

For any claim for clinical negligence to be successful, a claimant needs to prove that, firstly, there has been a breach of the duty of care owed by the doctor (or doctors); secondly, a claimant must succeed on causation, ie, that this breach of duty caused or contributed to the injury, loss or damage suffered, and that but for the negligence the claimant’s loss would not have occurred.

Before trial, both parties served evidence of breach and causation, in the form of reports from expert witnesses. For Drs A, B and C, a GP (Dr D) reported on breach and a consultant microbiologist (Dr E), consultant neurologist (Mr F) and consultant neuroradiologist (Dr G) reported on causation. Mr P served evidence on breach of duty from a GP (Dr I) and causation evidence from a consultant neurological and spinal surgeon (Mr J), and a consultant microbiologist (Dr K). Mr P was not relying on neuroradiology evidence.

The liability

On our assessment, Drs B and C had no culpability. Dr B simply reported the chest x-ray was clear. Dr C undertook a very detailed and thorough assessment and this was recorded in Mr P’s contemporaneous GP notes. Indeed Dr A was heavily reliant on Dr C’s very detailed consultation notes to assist him in defending his assessment of Mr P on 4 August. Proceedings were discontinued against Drs B and C shortly before trial.

Mr P alleged Dr A was in breach of duty for failing on 15 July to arrange blood tests and failing on 4 August to suspect infective spinal pathology and arrange a “very urgent orthopaedic investigation”. Mr P placed heavy reliance on his assertion that he had made sufficient complaint of back pain on each occasion to prompt suspicion of an infected spinal pathology.

Breach

Consultation: 15 July Dr A vigorously denied he was informed by Mr P that his back pain was worse, preventing him from lying flat on his back and disturbing his sleep. Dr I considered Dr A in breach of duty for failing to arrange blood tests in conjunction with a chest x-ray. He considered “blood tests were mandatory”.

If the court accepted Dr A’s factual evidence, Dr D agreed Dr A’s management was “entirely appropriate”. If, however, the court accepted Mr P’s factual evidence, Dr D agreed this should have “triggered” a neurological examination and, if Mr P had no neurological symptoms, this should have prompted referral within one to two weeks – either for an MRI scan or “more likely to an orthopaedic or neurosurgical specialist who may have requested an MRI scan”.

Consultation: 4 August

Mr P’s GP expert noted that this was the fifth consultation regarding the same illness without a diagnosis. Referral to a physiotherapist without a further examination was “unacceptable care”. He considered the appropriate response was to arrange a series of urgent blood tests and once the results were available (which he surmised would have been abnormal), Dr A should have arranged an urgent referral to an orthopaedic specialist/ A&E or MRI scan within 24 hours.

Dr A’s GP expert considered that on 4 August, Mr P was not displaying any symptoms or signs that would have alerted a GP to possible infective discitis developing. He considered referral within one to two weeks, based on Mr P’s factual evidence, either for an MRI scan or orthopaedic or neurosurgical specialist – who may have requested an MRI scan – appropriate management. He did not consider Dr A in breach of duty based on his factual evidence.

The trial

During Mr P’s cross-examination at trial it was clear he had no real recollection of the different consultations and could not, with any real accuracy, confirm what he told the GPs regarding his symptoms and, in particular, his back pain. He was, therefore, an unreliable witness. Dr I was discredited as not having been in practice for more than ten years.

Dr I also accepted, during his cross-examination, that if all the doctors’ factual evidence was accepted for each consultation he would not criticise their practice. Drs A, B and C came across as honest, reliable and caring witnesses (Drs B and C now appearing as witnesses rather than defendants). All confirmed that at no stage were they alerted to Mr P’s alleged extensive back pain. They were treating flu-like symptoms affecting the chest, and back pain was secondary and caused by the chest infection and coughing.

It was not until 4 August that Mr P complained of back pain, which was now the primary need for the consultation as his flu/chest infection symptoms had resolved. Dr A examined Mr P, concluded it was muscular and referred Mr P to a physiotherapist.

Causation

Mr P alleged if he had undergone blood tests following all consultations, the results would have been consistent with bacterial infection. This would have led to further investigations, prompting referral for orthopaedic investigation suspecting infected spinal pathology, including an MRI scan. A diagnosis would have been made, Mr P would have been admitted to hospital and treated with intravenous antibiotics, making a complete recovery.

Dr E maintained Mr P would have had to receive antibiotics for a period of 48 hours to have avoided all neurological sequelae, without surgery. Dr K considered antibiotics 24 hours earlier would have avoided onset of neurological deficit. Dr K, crucially, accepted at the experts’ meeting that Mr P’s white cell count and temperature would have been within normal range for each consultation.

The neurosurgeons agreed Mr P would have displayed no neurological sequelae at any consultation. It was accepted that if blood tests and further investigations had been undertaken after all consultations – save 4 August – Mr P would succeed by one way or another.

It was vigorously denied that even if blood tests had been undertaken on 4 August they would have altered the outcome. For Dr A to succeed at trial on causation in relation to the 4 August consultation, the court had to accept:

• Referral to physiotherapist was reasonable based on his factual evidence
• Referral to orthopaedic surgeon on a “non-urgent” basis was reasonable, based on Mr P’s factual evidence.

Even if the court did not accept referral on a “non-urgent” basis to an orthopaedic/neurosurgeon was reasonable, Mr P needed to establish that referral and appropriate treatment within a five-day window of opportunity (4-9 August) should include referral to an orthopaedic surgeon, MRI scan, biopsy and broad spectrum antibiotics.

Dr A did not assess Mr P until 5.30pm on 4 August. Accordingly, the earliest that blood tests could have been undertaken, based on a fasting sample, was 5 August, with the results available that afternoon. The earliest Dr A could have seen Mr P is 6 August, and an appointment arranged with an orthopaedic surgeon that afternoon.

The earliest an MRI scan could have been arranged is 7 August. The earliest the results could have been available is that same day, with admission to hospital that evening. Mr P was asymptomatic and the appropriate action would have been to undertake a biopsy to identify the pathogen so the appropriate antibiotic was administered.

A biopsy may not have been possible the following day as it was a Sunday and, as Mr P would not have been displaying any symptoms, the need would not have been “urgent” and would have waited until Monday, 9 August. By that stage, even on Mr P’s evidence, administering antibiotics would have been too late. At trial, Dr A’s expert neurologist was an excellent witness who spoke authoritatively and gave his opinion in a non-partisan way.

The outcome

Mr P abandoned his claim and discontinued proceedings after the conclusion of day three of the trial. By that stage all witnesses and experts, save the microbiologists, had given evidence. Mr P had funded his claim by way of a Conditional Fee Arrangement backed by insurance. MPS therefore sought and recovered their costs incurred in defending this claim to trial.

This was a significant and by no means straightforward claim to defend. The value of the claim was in excess of £5 million, with Mr P’s legal costs alone estimated to be an additional £1.5m. Given the potential financial exposure to MPS and having taken into consideration the views of the GPs named as defendants, a decision was taken to fight the case at trial. There were risks, most notably Dr A’s brief notes made in the records, but this in itself does not denote poor treatment.

This case highlights the importance of obtaining excellent and appropriate experts in relevant fields, at an early stage in the claim. At trial the judge found Dr A’s experts to be credible and reliable, and their evidence was preferred to that relied upon by the claimant.

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