Oakes v Neininger & Ors

Stephen Oakes, the Claimant, and his wife, Elizabeth, moved house in April 2001 to The Birches, Rigby Lane, Bradshaw, Bolton. He had suffered from back pain for some years as well as an unrelated urinary problem. Following a holiday in Italy, with increasing back pain, he visited his former GP, Dr Neininger (the First Defendant) on 14 July 2001 at about 10.30 to 11 a.m., who considered that he was still suffering from back pain or strain and prescribed anti-inflammatory and pain killer drugs.

Following a weekend of further pain, Mr Oakes had a very disturbed night on the 15^th July. He got out of bed at about 2 am, and had difficulty in urinating (but did so). Later, Mrs Oakes telephoned the GP out of hours call out service and explained the problem but, being unable to secure a GP to come out, the first ambulance crew was called (“the 1^st Call-Out”); they arrived at 4.46 a.m. The crew believed that sciatica could well have been the problem and advised Mr Oakes that calling a GP would be the best course for pain relief purposes. The crew facilitated a GP to visit.

Dr Brown (the Fourth Defendant) was the GP who arrived at 6.32 a.m. to visit Mr Oakes. He also considered that there was a sciatica problem and he provided painkiller and tranquiliser drugs. A second ambulance crew was called out (“the 2^nd Call-Out”) and arrived at 9.30 a.m. The crew did not recommend that Mr Oakes go to hospital.

Mr Oakes fell asleep at about 11.30, doubtless exhausted and with the various drugs making him drowsy. At some stage, he became incontinent between about 11.30 and 2.30. He had a hot bath but was not able to urinate until he later lost bladder control as he made his way downstairs. He lay down on the floor downstairs. By about 4.30 p.m. he started to feel comfortable and felt no pain. Mrs Oakes had earlier gone out to register him at a local medical practice and arranged a home visit by a Dr Benjamin. She arrived at about 6.30 p.m. and, following an examination, formed the view that Mr Oakes had developed neurological symptoms which required urgent specialist attention. She referred him to a specialist (orthopaedic) Senior House Officer at Bolton Hospital who saw him at 9.25 p.m. that evening. He formed the view that Mr Oakes was suffering from “Cauda Equina Syndrome” (“CES”) and recommended an immediate transfer to the nearby Hope Hospital which had a specialist neurosurgical unit.

Upon his arrival at Hope Hospital, he was seen by a specialist SHO at 23.40 p.m. who booked him on the emergency morning operation list for the following morning. He was seen by the consultant, Mr Spilsbury at about 9 a.m. on 17 July, had an MRI scan at about 10 a.m., was in the operating theatre by about 11.30 a.m. and out of it by about 1.30 p.m. The operation involved the removal of disc parts from his lower back; this had the effect of decompressing the area. He later had another operation on 21 July 2001

Mr Oakes was hospitalised for some five weeks. He has been left with a seriously impaired bladder and bowel function, a significant loss of sexual function, an impaired walking function and poor balance.

The Latin term means “horse’s tail” and describes a large bundle of nerves. CES has been described as:

“…a collection of signs and symptoms resulting from compression of the bundle of nerve roots emerging from the end of the spinal cord below the 1^st lumbar vertebra. The classic syndrome is characterised by severe LBP [lower back pain] with bilateral sciatica associated with saddle anaesthesia, urinary retention and bowel dysfunction.” (MPS Casebook-2003-“Cauda Equina Syndrome” by Anthony)

One of the causes of CES is a herniated intervertebral disc.

In an authoritative review in the British Journal of Neurosurgery in 2002 addressing the relationship in CES cases between timing of surgery and outcome, Gleave and MacFarlane said this:

“Kostuik, in a review article, defined [CES] as a complex of symptoms and signs consisting of lower back pain, unilateral or bilateral sciatica, motor weakness of the lower extremities, sensory disturbance in the saddle area, and loss of visceral function. Implicit in the diagnosis of this syndrome is bowel and urinary dysfunction. However, if meaningful analysis of the role of emergency decompression is to be evaluated, we believe that it is necessary to distinguish between two subgroups of cases. A patient with urinary difficulties of neurogenic origin, including altered urinary sensation, loss of desire to void, poor urinary stream and the need to strain in order to micturate (incomplete cauda equina syndrome –CESI), must be evaluated separately from one with painless urinary retention and overflow incontinence, where the bladder is no longer under executive control (cauda equina syndrome with retention-CESR).”

There is some lack of clarity and effective research as to the extent to which, after a patient has reached the stage of CESR, early surgery to decompress the lesion will or may avoid or reduce the permanent consequences of the condition. There is no doubt that, if surgery can be effected at the CESI stage and before the CESR stage, there will or should be a good recovery from most of the symptoms, although there is doubt as to whether full sexual function will be recovered. The experts in this case accept that proposition.

A number of parties originally joined as defendants in these proceedings are no longer parties. Essentially there are three defendants left in these proceedings:

Causation is in issue, save that Dr Brown and GMAS in respect of the 2^nd Call-Out crew accept that damages are payable for the extra pain and suffering incurred by Mr Oakes as the result of the delay in him getting to hospital. The causation issues revolve around:

The law so far as liability or breach of duty is well established so far as professionals are concerned. The well known authority of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 is often referred to:

“I myself would prefer to put it this way, that he [a medical professional in that case] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a respectable body of medical men skilled in that particular art…putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” (Page 587-per McNair J)

There can be no issue that the Claimant has the burden of proving that the breach of a duty of care in tort caused the injury or condition suffered (see Bolitho v City and Hackney Health Authority [1998] AC 232, 239F, approving Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Wilsher v Essex Area Health Authority [1998] AC 1074

In the Bolitho case, their Lordships had to consider issues of causation in the context of an arguably culpable omission, where “the question is what would have happened if an event which by definition did not occur had occurred”. In the current case, it may be necessary to consider what would have happened if Drs Brown and Neininger and the two ambulance crews had given the advice which it is said or accepted they should have done. Although the House went on to consider on the facts of that case what would or might have happened, I do not think that it was laying down precise formulations of how that hypothetical question has to be answered.

Some guidance is given in these hypothetical circumstances as to how courts should proceed, in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104. Lord Justice Otten said:

“Here the plaintiff does not seek to prove the loss of a chance; his case is that because of the delay he is worse off, or, had it not been for the delay, he would have been better off. It is not sufficient to show that delay materially increases the risk or that delay can cause injury. The plaintiff has to go further and prove that damage was actually caused, that is, that the delay caused injury. In my judgment, it is not sufficient to show a general increment from the delay. He must go further and prove some measurable damage.”

This case is particularly apt and I will have it in mind when addressing the facts.

I formed the view that all the witnesses, both factual and expert, were honest and did their best to assist the court.

I was impressed with the honest and open way in which both Mr and Mrs Oakes gave their evidence. I did not on any occasion feel that they were trying to mislead or exaggerate. I do allow for the fact that between the 14^th and the 17^th July Mr Oakes was in serious pain and discomfort and at least throughout Monday was tired. That period was also a disturbing and harassing time for Mrs Oakes who clearly did all in her power to assist her husband.

As for Dr Neininger, he frankly, but unsurprisingly, accepted that he could not remember the consultation of the 14^th July but relied upon his notes of the consultation and his usual practice of noting down salient features of what he saw and was told. Although he gave his evidence in a straightforward way, I sensed that he was not wholly confident about whether his notes were complete.

As for the 1^st Call-Out crew, Mr Crompton and Mr Evans, they were straight forward and answered all questions directly. The 2^nd call-out crew was not called.

I will address the experts and their evidence in the remainder of the judgment.

The only issue which I have to decide, given the GP experts’ agreement, is whether Dr Neininger was told by Mr Oakes about pains in both legs. I am in no doubt, and find at least on a balance of probabilities, that Mr Oakes did tell him. I make this finding for the following reasons;

The GP experts, who did not have to be called, say in answer to Question 2 of their joint statement of December 2007:

“In 2001 if a patient had consulted with back pain and unilateral signs and/or symptoms it would not have been mandatory for a competent GP to advise and warn about the potential symptoms of CES and the need to take very prompt action. If there were already symptoms and/or signs bilaterally in the legs such advice and warnings were mandatory” (emphasis added)

I conclude that breach of duty on the part of Dr Neininger is established. I will return to causation later.

Upon analysis, there is only one issue in the context of the 1^st Call-Out crew which is whether Mr or Mrs Oakes told the crew that he had experienced numbness or pins and needles. If that happened, there was evidence from Mr Kayani that ordinarily competent crews should have taken him into hospital. But for that factor, the experts agree that the crew were not in breach of duty in doing what they did in calling for a GP to attend.

There was no written witness statement or oral evidence from either Mr or Mrs Oakes as regards the 1^st Call-Out crew that he had or had told them that he had experienced numbness or pins and needles. Neither member of the crew could recall whether they were told about the numbness or pins and needles. Indeed, Mr Crompton, honestly, changed his written statement which indicated that this had not happened to that effect. There was no application to recall either Mr or Mrs Oakes to address this issue.

Ultimately, I was asked by Mr Donovan for Mr Oakes to infer that the crew was told about the problems. This was primarily on the basis, that as Mr Oakes had had the problem earlier in the morning and (as supported by a transcript of the relevant conversation) Mrs Oakes had expressly told the GP call-out service about the numbness and pins and needles problems at about 3.30 a.m., one or other of them is likely to have told the crew about these problems.

I am not in a position to accept that this should be inferred. My reasons are as follows:

It follows from the above that the case against the 1^st Call-Out crew for breach of duty is not made out.

Breach of duty is admitted in respect of Dr Brown and the 2^nd Call-Out crew. Essentially, their breach resulted in Mr Oakes not being taken to Bolton Hospital as soon as was practicable.

The major issues on causation revolve around (a) when Mr Oakes reached the stage of CESR and thus arguably beyond the stage when surgery would have improved his symptoms, and (b) when Mr Oakes would, as a matter of probability, have been operated on at Hope Hospital if there had been no breach of duty on the part of Dr Neininger, Dr Brown and the 2^nd Call-Out Crew. This latter issue involves a factual consideration of the likely timings.

When was CESR reached

I prefer the evidence of Mr Sett on this topic. It accords more with logic and recognises a factor, that of painlessness, which the authoritative paper of Gleave and MacFarlane acknowledges is a factor which should be present when CESR is reached. I can understand why Mr Morley and Mr Lemberger say what they do but it ignores what the authors actually say. If there is painful urinary retention, that must be because the nerves, at least those which register pain, are still operating. That in turn suggests that the syndrome is not complete and that surgery to relieve the pressure on the horse’s tail of nerves being compressed by the affected disc has a realistic chance of improving matters.

Extensive criticism of Mr Sett was made particularly by Ms Gollop, Counsel for Drs Brown and Neininger, in her closing submissions. I considered them unjustified. For instance, he records in his reports that he was told that Mr Oakes had broken his back and that Mr Oakes returned from Italy on the day that he visited Dr Neininger. He recorded what his notes recorded probably in shorthand and he may wholly understandably have misunderstood what either he had been told or what his notes recorded. It is said that his report addresses criticisms about parties other than those currently being proceeded against; however, his reports were drafted at times when other parties were still in the

As to when Mr Oakes first lost control of his bladder, I prefer his own evidence that it was only when he woke up that he discovered that he had wet himself. True it is that the Particulars of Claim (served initially in May 2004) assert at Paragraph 14 that “at or about 11.30 a.m. {he] suffered loss of control of his bladder” and Mr Sett records in his Causation report of 4 April 2006 (at Page 11) that there was the first “complete loss of bladder control on the morning of the 16^th July”. I would be most surprised if Mr Oakes, who I found to be an impressive witness, did not remember whether he lost bladder control before he went to sleep. It is more likely than not that it occurred when he was asleep between 11.30 a.m. and 2.30 pm. Therefore, on a balance of probabilities, the loss of bladder control first occurred at the mid point of his sleep, namely about 1 p.m.

I am satisfied that in all probability Mr Oakes went into the state of painlessness at the time when he said he did, which is about 4.30 p.m. He said in his first statement that about that time he started to feel comfortable, the pain had gone and he started to feel no pain at all. He described that earlier he felt that his bladder was extremely full and that after his bath after 2.30 p.m. he did not “get any real relief”. I conclude that he felt pain from his bladder before 4.30 p.m. but after the loss of bladder control. It was suggested by Mr Morley that all he probably felt from the bladder department was the nerve sensations from the abdomen muscles or similar which had not been affected by the collapsing disc. I prefer Mr Oakes’ own factual evidence on this, supported as it was by Mr Sett, rather than Mr Morley’s assumptions.

The next issue is, given that the conclusion which I must draw from my findings above is that Mr Oakes experienced CESR at about 4.30 p.m. on the 16^th July 2001, whether he would have been operated upon in time before CESR came on. I need to consider the impact on the timings separately in relation to the three parties who have either admitted liability or been found liable. There is a lacuna in the pleadings because the causation case is pleaded against the First, Second and Third Defendants, whilst Dr Brown is the Fourth

In effect the GP experts agreed that Dr Neininger should have warned Mr Oakes that if he developed sphincter disturbance, saddle anaesthesia, loss of power to his legs, new or additional urinary symptoms or deteriorating bladder control, he should either contact a GP or take himself to A&E immediately. Mr Oakes said that if he had been so warned he would have insisted that the 1^st Call-Out crew took him directly to hospital. That was not challenged seriously or at all; I accept his evidence and so find.

On a balance of probabilities, what then would have happened is as follows:

I have based these findings (set out in the preceding paragraph) on the following:

There was considerable debate between the experts as to what would be the minimum time in which the patient would or could have been operated on. They agreed that “surgery could be performed within 6-8 hours after admission” but disagreed as to whether that meant admission at Bolton or Hope Hospitals. Mr Sett said admission at Bolton whilst Mr Morley and Limberger said admission at Hope. I preferred Mr Sett’s evidence on this issue. However, my timescale is some 5 hours from admission at Bolton as that reflects the actual history and Mr Kayani’s evidence. All the experts were emphatic that Mr Oakes’ case needed to be treated as an emergency particularly as he would have been in CESI and early surgery had a good chance of avoiding serious permanent problems for the patient. It is inconceivable that in these circumstances Hope, and Bolton, would not have done all they could to get this man with CESI on to the operating table within a lesser time than actually happened after CESR had set in.

It follows that I am satisfied upon a balance of probabilities that Dr Neininger’s breach of duty caused the conditions which Mr Oakes suffers from (see the section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified above, whilst he was still at the CESI stage.

A similar timescale would apply in the case of Dr Brown except that he only arrived at The Birches at 6.32 a.m. on the morning of 16 July 2001. He left by 6.42 a.m. He should and would have called an ambulance by 6.45 a.m. and, in the same way as Dr Benjamin did later that evening, have referred him to a specialist (orthopaedic) Senior House Officer at Bolton Hospital. On a balance of probabilities, the ambulance would have arrived at no later than 7.05 a.m. I have taken 20 minutes to reflect the times taken by the first two ambulance crews to arrive after being called.

Mr Oakes would have been in Bolton Hospital being examined by the orthopaedic SHO by about 7.30 a.m. The same timescale would then apply as in the case of the Dr Neininger- Causation scenario set out above. Thus, he would have been in the operating theatre by about 11.30 a.m and the operation completed about two hours later.

I therefore find that upon a balance of probabilities that Dr Brown’s breach of duty caused the conditions which Mr Oakes suffers from (see the section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified earlier in this judgment, whilst he was still at the CESI stage.

Similar considerations apply in the case of the 2^nd Call-Out crew. It arrived at the Birches at 9.41 a.m. Although in fact they left at 10.18 a.m, in my judgment they should have had Mr Oakes in the ambulance by 10 a.m. and been at Bolton A & E by 10.20 a.m. This reflects the time taken by the crew who got Mr Oakes to hospital that evening.

The same timescale applies to that applicable in the Dr Neininger-Causation scenario above. Thus, on that basis, Mr Oakes would have been in the operating theatre by no more than about 5 hours later, that is, by 3.30 p.m. In all probability, that stage would have been somewhat earlier than that to reflect (a) a twenty minute ambulance journey to Bolton Hospital, (b) the fact that the Orthopaedic SHO at Bolton would not have had to be roused at that time of the morning, and (c) there would have been a recognition by Hope Hospital that they had a patient who had been exhibiting CESI symptoms for some 8-10 hours or more and it was becoming increasingly urgent to operate. On balance, I find that he would probably have been being operated upon by 3.00 p.m.

Therefore, since CESI in fact did not occur until about 4.30 p.m., I find on the balance of probabilities that the breach of duty on the part of the 2^nd Call-Out crew caused the conditions which Mr Oakes suffers from (see the Section Injuries and Medical Consequences below), which would have been avoided if Mr Oakes had been operated upon within the timescale identified above, whilst he was still at the CESI stage.

There was extensive debate in the expert evidence and in the argument as to whether, if CESR had set in before the time when the operation would have been performed, the breaches of duty still caused vital time to be lost so that the operation eventually done by Mr Spilsbury on Mr Oakes on 17 July between about 11.30 a.m. and 1.30 p.m. was done later than it would have been done if there had been no negligence. The debate extended to considering whether there would have been any (more than insignificant) improvement in Mr Oakes’ conditions if he had been operated upon earlier in his CESR state.

It is not necessary for me to decide this issue given my findings above. However, I have formed the view that the benefits of earlier rather than later operation of patients in the CESR stage were not established on a balance of probabilities. Although all the experts who gave oral evidence were of the view that their overwhelming instinct was that one should operate earlier rather than sooner, there is little reliable evidence that there is a physiological or neurological benefit. Greave & MacFarlane say:

“…examination of the literature does not support a role for emergency surgery to treat a condition which is complete at the time of presentation to hospital. In such cases, the critical period has already passed and it is too late to recover the situation by emergency decompression of the cauda equine. In this situation, surgical delays do not affect final outcome.”

The authors had referred to various papers which had suggested otherwise. Indeed, the Claimant’s experts and Counsel pointed to various papers which suggested otherwise.

I am not satisfied upon a balance of probabilities that surgery up to 12 hours after a patient went into CESR would provide a measurable improvement. Certainly various papers do suggest that some patients do have some improvement with earlier surgery. However, at most, in the context of this case, earlier post CESR surgery gave Mr Oakes a chance of some improvement. As the case of Tahir v Haringey Health Authority lays down, that is not enough. I can not find on a balance of probabilities that an earlier operation after CESR set in would probably have resulted in a discernible, significant or relevant improvement.

The experts are agreed, and I find, that, if surgery had been carried out whilst CESI was present, a full recovery would have taken place with regard to bladder and bowel function, mobility and gait and neuropathic pain with the exception that there would still have been chronic back pain. The sexual function would probably not have been recovered at least to a normal state but it would have probably have been better than it became.

Thus, the injuries and conditions, which Mr Oakes has suffered or been left with as the result of the breaches of duty which I have found, are those which would have been avoided if he had been operated upon whilst still in the CESI state:

Although Counsel have urged me to address the injuries and medical consequences in as much detail as possible, I was not assisted much by the oral or written openings or closings. Mr Morley and Mr Lemberger do not opine in their reports to any significant extent as to what the consequences of operating before CESI were or would have been. The Joint Statements do assist to some extent but they address the matters in generalities which, whilst helpful, do not condescend to much detail. Mr Sett does address the causation in more detail and where I have gone further than the Joint Statements I have accepted Mr Sett’s observations as probably correct, unchallenged as they were. I have done the best that I can upon the available information.

So far as sexual function is concerned, my findings reflects the fact that the experts agreed at Answer 9(iv) of the “Defendants’ Agenda” part of the Joint Statement that, amongst others, the sexual function would be “fully recovered”. They agreed, perhaps confusingly in Paragraph 8 (iv) of the “Claimant’s Agenda” that sexual function would be “unlikely to return to normal”. There was some acceptance by Mr Sett that, as the relevant nerves for the sexual function are sensitive and once affected by pressure, there is much more potential for those nerves to remain affected; he said in evidence that, if the operation had been done at 2 to 3 p.m. on the afternoon of 16 July 2001 or by inference later, sexual function would not return. I infer however that it would have been, not insignificantly, better if the operation had taken place before then, as would apply in the case of the doctors’ causation scenarios, albeit not in the case of the 2^nd Call-Cut crew. I am not unfortunately in a position to say at this stage precisely what extent of sexual function would have been saved or preserved if the operation had been carried out in the morning of the 16 July 2001. That will have to be addressed at a later stage.

I conclude and find that Drs Neininger and Brown and GMAS are liable in negligence to Mr Oakes with the result that he was prevented from having earlier surgery whilst still at the stage of CESI. Consequently, he was denied the substantial recovery which would have followed such earlier surgery as described above.