No liability in paraplegia case despite failings: Barnett v Medway NHS Foundation Trust

No liability in paraplegia case despite failings: Barnett v Medway NHS Foundation Trust (High Court, 23/2/2015 – Judge Brian C Forster QC)

Introduction

The claimant, who was aged 56 at the date of judgment, suffered from an unusual congenital condition called hypophosphatasia. As a result, he had deficient bone mineralisation and underwent various hospital admissions over many years because of his condition. Nevertheless, he was able to pursue an active lifestyle and worked as the manager of an equipment hire depot.

In October 2009, he suffered significant pain and was admitted to hospital. He was discharged home on 19 October and on 22 November 2009 was admitted as an emergency. Unfortunately, despite surgical intervention, he is now paraplegic.

Chronology

In March 2009, Mr Barnett had been admitted to hospital with pain in his left thigh. Previously, as part of the treatment of his condition, a surgical nail had been inserted into each thigh. X-ray examinations confirmed a stress fracture at the level of the locking screw on the left femoral nail. This was therefore replaced.

On 2 October 2009, Mr Barnett suffered the onset of pain and consulted his family doctor. On 6 October, he attended the Accident and Emergency Department of Medway Maritime Hospital. There was no X-ray evidence of a femoral fracture, but blood tests showed a high C-reactive protein (CRP) of 371.2, and the patient was noted to be febrile. A working diagnosis of osteomyelitis (inflammation due to infection) of the left femur was made, and antibiotics were commenced.

On 7 October, an orthopaedic surgeon ordered a bone scan, and on 12 October, antibiotics were stopped. The consultant asked that the bone scan result be chased. On the 14th, the scan confirmed active osteoarthritis whilst not excluding underlying osteomyelitis. The report indicated that an indium white cell scan would be arranged.

On 19 October, Mr Barnett was discharged home, and on the 28th, the white cell scan was carried out. The report concluded that the findings were ‘in keeping with an inflammatory process, suspicious for infection, in the left knee. There is no evidence of osteomyelitis within the distal left femur’.

On 9 November, blood tests showed a reduced CRP of 97.5. On 19 November, the claimant was seen by Dr Williams, a rheumatologist. He considered that the reactive arthritis had run its course and left management to the orthopaedic team.

On 22 November, the claimant was admitted as an emergency. His CRP was 519. Doctors were significantly concerned, and a working diagnosis of osteomyelitis of the left greater trochanter was considered.

The following day, Mr Barnett was complaining of pain in the lumbar spine, abdomen and loin. An urgent magnetic resonance imaging (MRI) scan revealed acute spondylodiscitis, complicating intervertebral disc abscess, a small epidural abscess and likely paraspinal abscess.

On 24 November, surgical decompression of the abscesses was undertaken. Unfortunately, a post-operative scan showed infarcts of the spinal cord, and Mr Barnett now has T7 paraplegia. It was caused ultimately by an infection, methicillin-sensitive Staphylococcus aureus (MSSA).

Allegations

The claimant alleged:

Blood cultures should have been taken before the antibiotics were commenced on 6 or 7 October.

Discussion of the evidence and findings

The experts agreed that the diagnosis of spinal infection is notoriously difficult. They also agreed that obtaining blood cultures before the prescription of antibiotics is a basic and essential step. For an unknown reason, that action was not taken. This was a breach of duty. The procedure was simple and could have been carried out.

Antibiotics were stopped on 12 October because, according to the attending orthopaedic consultant, Mr Ahmed, the patient’s condition had become more settled and his temperature was normal. There were no spikes of temperature.

Mr Ahmed added that he considered the need for monitoring inflammatory markers but did not believe this was necessary. He took the view that the raised markers were consistent with a sequentially failing fracture and believed that they were related to the claimant’s ongoing pain.

The orthopaedic experts (Mr Wilson-MacDonald for the claimant and Mr Dyson for the trust) took different views as to the reasonableness of discontinuing antibiotics. The former considered that there should have been a thorough assessment of the inflammatory markers, whereas the latter stated that the measurement of markers was undertaken at reasonable intervals.

Mr Wilson-MacDonald also opined that it was very rare to see a high CRP result where there is no infection. He considered that his suggested testing would have led to a scan. Mr Dyson, on the other hand, stressed that the claimant’s clinical condition had settled. In his opinion, there was no necessity for Mr Barnett to remain in hospital at this point. He was not being discharged from care; however, an appropriate appointment for the white blood cell scan had been arranged.

Mr Dyson also believed that the high CRP could have been contributed to by acute reactive arthritis, the unstable fracture and underlying infection. He accepted that the possibility of an underlying infection had to be kept in mind, but the clinical position had improved to that which Mr Barnett had been in for several months. He conceded that the high CRP should have been followed up and that the inflammatory markers should have been repeated.

Professor Wilson, an expert microbiologist instructed by the claimant, believed that the high CRP would not be explained by the fracture. Professor French, the trust’s expert microbiologist, considered the case to be complex. Even now, he thought the CRP reading of 371 was in a sense unexplained. This was because even if there had been an infection of the spine at this point, it would not have given rise by itself to such a high result. In the opinion of Professor French, several things must have been going on, some of which we did not know. However, he thought it reasonable to stop the antibiotics.

Held: It was reasonable to stop the antibiotics, but close monitoring of the CRP and white cell findings should have been undertaken.

Mr Ahmed, the orthopaedic surgeon, stated that he did not consult a microbiologist because at this time he did not have a diagnosis. If a diagnosis had been made and there had been a specific reason to seek advice, he would have done so.

Professor French thought that microbiology advice would have been helpful but not mandatory. Professor Wilson, however, believed such advice was required in view of the presentation. Both microbiologists accepted that the need to involve their speciality was a matter for orthopaedic opinion.

Mr Wilson-MacDonald considered that consulting a microbiologist before discharge would have been best practice. Mr Dyson, for the trust, agreed that this might have been helpful but that there was no imperative to do so.

Held: The available evidence did not support the allegation of breach of duty for failing to consult a microbiologist.

Turning to the question of whether blood cultures would have been positive, the microbiologists expressed different opinions as to whether there was a spinal infection at that time and as to whether there would have been positive cultures. Professor French thought that there would have been a ‘silent’ spinal infection because in view of the absence of typical symptoms, he believed that the claimant came within a group who would not produce positive cultures. Professor Wilson, however, suggested that a positive result would have been obtained. However, in his report, he stated that ‘there was no unequivocal evidence of infection before mid November 2009’. Both microbiologists stressed that the case was difficult.

Held: There was no evidential base established to the required standard. This was an unusual situation in which there was a lack of actual evidence to help with a determination of the conflicting options. In such circumstances, whilst the evidence of Professor French was the more likely, the court was unable to make findings concerning the onset and progression of the infection to the relevant standard of proof.

Turning to the effect of monitoring after the claimant had been allowed to go home, the result of the white cell scan would have been considered as showing an improving picture. There was no reasonable basis to suggest that there would have been any significant change in patient management before the result of this scan was known. It had not been established on the balance of probabilities that an MRI scan should have been performed or that monitoring would have led to such a scan of the spine.

As to whether antibiotics should have been recommenced on 9 November, it had not been established to the required standard that the infarction would have been avoided if this had happened.

Overall, in many respects, the treatment received and practices followed were poor. Blood cultures were not taken. Laboratory notification that a blood sample submitted could not be tested because it was haemolysed did not result in a new sample being submitted. The discharge letters did not provide meaningful information. Nevertheless, the claim had not been established to the standard of proof required by the law, and there would accordingly be judgment for the defendant.

Christopher Wilson-Smith QC and Nathan Tavares (instructed by Stewarts) appeared for the claimant. Edward Bishop QC (instructed by Bevan Brittan) appeared for the trust.

Comment

It might be thought that the trust was relatively fortunate to escape liability having regard to the various failings identified by the judge. Nevertheless, the experts considered this to be an extremely difficult case, and there was no proof, on the balance of probabilities, that the failings in question led to the claimant’s paraplegia. Undoubtedly, what occurred was devastating for the claimant, but this seems to be one of those relatively rare cases where precisely what was happening medically at every point remains unclear, even following scrutiny by leading medical experts. In the circumstances, the claimant failed to achieve a proverbial knock-out blow and the judge therefore had to find for the defendants.