In a recent case successfully pursued by RWK Goodman, the claimant attended his GP complaining of sciatica. Questions were asked by the GP about whether “red flag” symptoms had been suffered, but those questions were not given context.
The GP, once a medical negligence claim for cauda equina injury was brought, maintained that he had given appropriate safety netting advice, but the claimant denied that he had received any such advice.
The GP recorded in his notes: “Sciatica playing up no red flags advice also.” These words were the source of considerable debate during the case. Did they mean that “red flag” advice had been given, or that no red flags were present, but that more general advice was given? The GP gave two advice leaflets to the claimant but neither of them were about sciatica, or contained “red flag” advice about CES, which lent weight to the second interpretation.
The same day, the claimant developed a change of sensation when urinating, but did not act upon this or seek advice, as he was not aware of the significance of this symptom. The following day he noticed some difficulty in starting urination, and some sensory change in his buttocks. Again he did not seek medical advice about these symptoms, because he did not understand their significance. On the next day he awoke with more severe symptoms and telephoned NHS 111. He was advised to attend the Emergency Department, which he did, leading to his admission, diagnosis with CES and eventually to surgery to decompress the nerves in the cauda equina area.
Unfortunately the surgery was too late, and the claimant was left with permanent bladder and bowel dysfunction as well as sexual dysfunction. He subsequently took medical retirement from his employment as he felt unable to continue his work, which was client-facing, with his symptoms of urinary and bowel incontinence.
The claim was pursued almost to trial, but eventually a settlement was agreed two months prior to trial, with the claimant receiving £400,000 in damages. The case would have turned upon a judge’s analysis of the cogency of the evidence of the claimant and the defendant GP; essentially the more convincing witness at trial would have won the case.
When will a claim for failure to provide ‘safety-netting’ advice succeed?
There are a number of required elements for such a claim to succeed.
First, the claimant must give convincing evidence that no adequate advice was given. This may be rebutted by a good note to the contrary made by the GP or other clinician.
Secondly, the lack of advice must have affected the claimant’s subsequent behaviour; in other words, had the advice been given he would have acted differently.
Thirdly, the difference in behaviour must have affected the outcome in terms of the permanence or severity of the claimant’s cauda equina syndrome.