Claims Online August 2019

Cauda equina syndrome (CES) is a rare condition which occurs when the nerves at the base of the spinal cord are squeezed together. It can cause pain in the lower back and/or legs, numbness or weakness in one or both legs, in the buttocks or between the legs (the ‘saddle region’).

Claims relating to CES

CES is a medical emergency and timely referral for investigation and treatment is required to prevent permanent neurological damage. Unfortunately, complaints of lower back pain are extremely common in primary care and at its earliest stages a diagnosis of CES can be difficult to diagnose. Research conducted by the Medical Protection Society in 2016 identified that failures or delays diagnosing CES were one of five GP errors resulting in the most expensive clinical negligence claims.

A significant compensatory award can be made if the claimant can show there was:

- a failure to diagnose;
- a failure to treat;
- inadequate or negligent surgery; or
- a failure to recognise post-operative complications.

For a claim to be successful, the claimant has to show that there has been a breach of duty - that the clinician’s care fell below a reasonable standard. The claimant must then prove causation i.e. that the breach has caused loss or damage.

NHS Resolution’s analysis in 2016 demonstrated a cost to the NHS in excess of £25m from CES claims. When the MDU undertook a similar analysis of CES claims closed between January 2005 and August 2016, a total of 150 claims were identified. 92% of these claims involved GPs, with payments of approximately £13m being made for compensation and legal costs. A successful claim will result in an award for damages for pain suffering and loss of amenity. However, this may well be dwarfed by an associated claim for the costs of future care and assistance as well as loss of earnings. This is particularly the case where the patient was a high earner; as compensation in negligence is aimed at putting the patient back in the position they would have been in the absence of the negligence.

Red Flags

The NICE Guidelines list the ‘red flag’ symptoms and signs that should cause there to be a clinical concern about CES in a patient who complains of back pain as follows:

- Bilateral sciatica
- Severe or progressive bilateral neurological deficit of the legs, such as major motor weakness with knee extension, ankle eversion, or foot dorsiflexion.
- Difficulty initiating micturition or impaired sensation of urinary flow, if untreated this may become irreversible
- Urinary retention with overflow urinary incontinence
- Loss of sensation of rectal fullness, if untreated this may become irreversible
- Faecal incontinence
- Perianal, perineal or genital sensory loss (saddle anaesthesia or paraesthesia).
- Laxity of the anal sphincter.

The MDU Journal (Spring 2017) highlights the following top tips for GPs:

- Conduct a full examination to establish the likely cause of the back pain and make a record that this has been done.
- Consider whether there are any red flags.
- If red flags are present, the patient needs to be seen in hospital urgently. Call the orthopaedic or neurosurgical specialist for immediate advice, or if this is not available, arrange for the patient to be admitted to hospital via the emergency department.
- If no red flags are present, make a record in the notes to demonstrate you have actively considered the condition.
- If, after the assessment, the patient is being managed as having simple mechanical back pain, make sure you give appropriate safety netting advice. This should include advising the patient of the red flag symptoms and the importance of seeking urgent medical attention if these appear. Again, try to make a record in the notes of the specific safety netting advice that has been given.

Successful defence of CES claims

Unquestionably the standard of record keeping will be central to the successful defence of a claim relating to CES to include active consideration of the presence of ‘red flags’ and the provision of safety netting advice. Access to MRI scanning for those with suspected CES will be a vital component going forward if the volume of claims is to be reduced. The spinal surgery national report – the eighth from the Getting It Right First Time programme – focuses on spinal emergency conditions such as spinal cord injury and spinal infection, in addition to the management of common conditions such as back and radicular pain (sciatica). The report includes 22 recommendations directed at improving the experience of patients, which could deliver cost efficiencies estimated as up to £27m. The recommendations in the report include access to 24 hour MRI scanning in all hospitals for patients with suspected CES and all major trauma centres having the ability 24/7 to stabilise and decompress the spine in patients with fractured and dislocated spines.

With these changes in place, it is hoped that the perceived upward trend in claims relating to incidents of CES will be reversed.