Counsel from Crown Office Chambers successfully defend trial judge’s decision on appeal in cauda equina syndrome case
In 2019, Erica Power and Victoria Woodbridge successfully defended a GP and two NHS Trusts in a clinical negligence trial concerning the management of cauda equina syndrome (see here). The Claimant appealed. Alex Antelme QC and Alex Hutton QC appeared with Erica and Victoria in the Court of Appeal. Yesterday, the appeal was dismissed on every ground.
- The Court of Appeal confirmed again the high hurdle for an appellant in challenging the assessments of a trial judge who has heard the evidence and resolved disputes between experts.
- The CA refused the invitation to tweak the Bolam test in cases of medical emergencies; reasonableness remains the touchstone.
- The CA supported the conduct of an out-of-hours GP unreservedly and recognised the challenges and pressures of that role.
- The CA rejected the Claimant’s contention that this was an opportunity for the CA to give general guidance on the management of cauda equina cases. An appellate (or, perhaps, any) court is not the right forum for clinical guidelines.
- The CA expressed some scepticism about the correct application of the judgment in Wright v Cambridge.
- The CA commented critically on the decision by the Claimant to advance a ground of appeal that the Judge revealed apparent bias because the Claimant lost on every point. Permission was not granted for that ground.
In Perry v Raleys Solicitors  2 WLR 636, the Supreme Court reminded us of the high threshold for an appellate court to interfere with primary findings of fact of a first instance judge. Lord Briggs JSC confirmed that the appellate court would only intervene where either “there was no evidence to support a challenged finding of fact, or … the trial judge’s finding was one which no reasonable trial judge could have reached”.
In its judgment in Hewes v West Hertfordshire Hospitals NHS Trust & Others  EWCA Civ 1523 (see here), the Court of Appeal roundly dismissed the Claimant’s appeal against the decision of Anne Whyte QC, sitting as a Deputy Judge of the High Court in May 2019. Davis LJ commented that in his view the grounds of appeal advanced “[fell] foul of virtually all the warnings and prohibitions” contained in recent authority. With deliberate overuse of a sailing metaphor, his judgment, in the tailwind of Laing LJ’s lead judgment, is a salutary reminder of the risks, when seeking to appeal against findings of fact, of charting a course meandering through selected islands of evidence and ignoring every island or tide or gale which counters your case.
Mr Hewes suffers from degenerative disc disease. On 12th March 2012 he developed cauda equina syndrome (“CES”). The cauda equina is a delicate group of nerves that emerge from the base of the spinal cord and are responsible for the motor and sensory functions of the bladder, bowel, genitals and saddle area. CES is relatively rare (despite its apparent prevalence on the desk of the clinical negligence specialist) but occurs when those nerves are compressed or squeezed, commonly by a large central disc prolapse. This is what happened in Mr Hewes’ case. Although Mr Hewes underwent emergency spinal decompression surgery later the very same day, he was left with significant neurological deficits. He alleged that each Defendant had negligently caused delay in his assessment and management and so surgery started too late for him to make a full recovery.
D3 was an out of hours GP manning an NHS 111 telephone triage service. During a five-minute telephone call, he rightly suspected that Mr Hewes might be suffering from CES. He had “skilfully elicited” a so-called red flag for CES. He advised Mr Hewes to attend A&E at Watford General Hospital (WGH) to get an MRI scan and be seen by the orthopaedic doctors. The Claimant contended that the only proper option was to advise Mr Hewes to go to A&E but also to contact the on-call orthopaedic team at WGH to ensure that Mr Hewes was urgently assessed by them on arrival as an “orthopaedic expected patient”, thereby bypassing A&E.
D2 was an Ambulance Trust. It was admitted that Mr Hewes was not correctly prioritised and should have arrived at WGH 19 minutes earlier.
D1 was the Trust responsible for WGH. The Claimant alleged that he was not reviewed quickly enough with appropriate senior input, CES should have been confirmed sooner, the MRI scan arranged more urgently and prioritised over other patients. Appropriately managed, it was alleged, Mr Hewes would have been treated soon enough to allow a full recovery.
The trial lasted 6 days. The Judge heard oral evidence from lay and expert witnesses as well as a wealth of academic literature. She dismissed Mr Hewes’ claim on all disputed issues.
The Appeal was heard over three days (and was selected for live broadcast on the Court of Appeal’s YouTube channel and archived for posterity for those that wish to view/listen to the hearing). The Defendants contended that the appeal was an unacceptable and unmeritorious attack on the Judge’s comprehensive analysis of the issues in the case; the judgment was well-reasoned and clear and she was entitled to reach the conclusions she did on the totality of the evidence before her. Even McCombe LJ in giving permission considered that her judgment was “carefully reasoned” and demonstrated her “careful treatment of this claim”.
The CA have emphatically endorsed the Judge. Davis LJ commented that she was “to be commended for getting closely to grips with the totality of the evidence and in making, in her careful reserved judgment, a thoroughly rational and cogent appraisal of the evidence”. Laing LJ noted the Judge’s “thorough and rigorous” engagement with the range of issues before her and continued:
“The Judge was given many building blocks for her judgment, that is, all the evidence, lay and expert and the parties’ submissions. The agreed issues were the framework of the judgment. But they did not dictate its overall structure, or its details. Those were for the Judge to decide, as a result of a cumulative series of assessments which it was for her to make; not for this court. I consider that the Judge is to be commended for having grappled with the detail of the evidence and submissions and for having distilled the essence of those materials into a judgment which deals economically and persuasively with what, the parties had agreed, were the significant issues. The tight structure of the judgment, and its succinctness, are signs that the Judge had carefully navigated the sea of evidence and analysed its essential components into a coherent whole”.
The Defendants succeeded on every issue. None of the criticisms made (which were wide ranging and detailed) “individually or cumulatively” persuaded the Court of Appeal to interfere with the Judge’s decision. Indeed, they concluded that it was the right decision, as per Laing LJ, “having read, heard and reflected on, the detailed attack on the judgment in the Claimant’s written and oral submissions, and the response to that from the Respondents, I not only consider that the decision which she made was one which was open to the Judge, but that it was the right decision”. Davis LJ queried why the claim against the GP had ever been pursued.
Lessons and the future
This was the first CES claim to reach the Court of Appeal but it might not be the last. We suspect that appellants (whether Defendants or Claimants) will need to think very carefully before pursuing an appeal which effectively asks the CA to revisit an entire case including the Judge’s findings of fact, her evaluation of those facts and her mixed findings of fact and law. There was no ambiguity that the trial judge is uniquely placed to perform the evaluative exercise which is required at trial and the Court of Appeal will not readily seek to take on that role. Appeals on the facts will only succeed where those findings are demonstrably perverse; the case of Hewes was not that case.
The Claimant sought to bolster the appeal by suggesting that the lower Court’s treatment of the actions of an out-of-hours GP and the management of CES had some wider general public importance and so should be addressed by the CA. The case was very important to Mr Hewes who acted with great dignity throughout and attracted considerable sympathy from all involved. It was important to D3 and the clinicians engaged by the NHS Trust, all of whom have had an allegation of professional negligence hanging over them for the best part of a decade. But the Court of Appeal made it clear that cases of clinical negligence generally, and cauda equina claims specifically, will turn on their own facts and they properly refused to be lured into providing general guidance in this area. Davis LJ made it clear that the appellate court needs to be careful to avoid making generalised pronouncements about the obligations of medical professionals: “What is ordinarily required, in each case, is consideration of whether the responses and procedures actually undertaken in a given medical situation fall outwith the range of reasonable and logically justifiable responses and procedures, applying the Bolam/Bolitho principles, on the fact of the individual case.” It is possible to forget that the touchstone in such a case is always reasonableness and this judgment reinforces that. In particular, the Court of Appeal made it clear that the test for negligence in the context of the management of a potential (or actual) surgical emergency remains the Bolam test, and the Claimant’s attempt to introduce a refinement to that test (to the effect that, in an emergency, each step in the management process must be taken as quickly as practicably possible) was firmly rejected. Reasonableness is, of course, dependent on context, and in the present case part of the context was that Mr Hewes was an emergency. The other part of the context was “the relatively limited resources of a District General Hospital in a busy public health service with many urgent cases competing for attention”.
It will be of some comfort to the GP that surprise was expressed that the claim was pursued against him at all. It may also be of comfort to Master Cook who gave summary judgment for the GP at an earlier stage of this claim but was overturned on appeal (and also to Claire Toogood and David Myhill who represented the GP in relation to that application). The ship has definitely sailed full circle irrespective of which ocean it was navigating!
Although not developed fully in argument, the CA expressed some reservations about the application of the CA decision Wright v Cambridge Medical Group  EWCA (Civ) 669. This case is oft cited in support of a proposition that if a Defendant GP is found to be negligent in his or her treatment of a patient, he cannot rely on the subsequent hypothetical negligent treatment of that patient by a hospital to escape liability. Laing LJ concluded that “it is not easy to tease a ratio from this decision”, noting that the two members of the court who allowed the appeal (Neuberger LJ and Janet Smith LJ, Elias LJ dissenting) did so for different reasons. Laing LJ suggested that Neuberger LJ, as he then was, “was not articulating a legal rule that applies on all cases, in part, because the application of any such rule will depend on what damage was caused by each successive negligent act.” It can be seen that Wright is a difficult case and the scope of its application may well need to be argued properly in a case where issues of factual causation may be central.
Finally, the Judge had adopted a more sophisticated approach to the point of no return and when damage became irreversible based on pathophysiological factors and the Claimant’s own presentation. For those facing similar issues (CESI v CESR), the first instance judgment may be a helpful read (see here).
Erica Power, appeared on behalf of the First and Second Respondents, Instructed by Dominic Ip of Capsticks LLP.