Background facts

The Plaintiff aged 38, was a Professional. His remuneration was approx €100,000 per annum.

On or about the 21^st May 2018, the Plaintiff experienced pain in his lower back radiating into his left leg. The following day the pain had progressed into a loss of sensation in parts of his left upper thigh, right buttock and inner thigh and groin.  On 23^rd May 2018, the Plaintiff went to his GP complaining of the aforesaid symptoms as well as some loss of power in his right leg.  The GP made a presumptive diagnosis of suspected evolving cauda equina syndrome and referred him immediately for treatment at Hospital.  At approximately 0300 hours on 24^th May 2018, the Plaintiff arrived at the Major teaching Hospital with a referral letter from the GP  Aside from the other red flag symptoms mentioned above. He was triaged and seen eventually by an Emergency Department SHO.  Crucially, he was not seen by an Orthopaedic Registrar or any doctor above the rank of Emergency SHO. Despite staying at the Emergency Department of the hospital for 17 hours, he was not seen by the Orthopaedic Team. He was discharged from the hospital with a direction that he should have an outpatient’s MRI scan performed and be given an appointment to attend the Outpatients Department in due course.  Without seeing him, the Orthopaedic Registrar diagnosed he was suffering from sciatica and was not developing an evolving cauda equina syndrome.

At approximately 20.14 hours on  24^th May, he was discharged from hospital.  He got the bus home at 2100 hours on the night of the  24^th May. The Plaintiff’s symptoms of pain and altered sensation continued and worsened thereafter during the night/morning of the 24^th / 25th May. On  25^th May, his condition deteriorated with increasing pain, worsening symptoms of numbness and weakness in his left leg, saddle area numbness and difficulty passing urine.  An emergency appointment was made with his own GP, who examined him and urged him to immediately reattend the Hospital and refuse to leave the hospital until such time as an MRI scan had been performed. The Plaintiff arrived back at the  Hospital on  25^th May 2018 at approximately 20.22 hours.  A decision was made not to perform an MRI scan until the following morning and remarkably not to urgently perform such a scan that night, or urgently surgically treat the patient despite having been examined by the Orthopaedic Registrar. The MRI scan was performed at approximately 0800 hours on 26^th May 2018. This showed a very significant/large disc protrusion at L5/S1 compressing on the cauda equina.  There was considerable controversy as to the extent of the disc protrusion and the extent of the compression of the cauda equina between the medical experts.  At approx. 10.00hours on the 26^th May 2018, the Plaintiff was operated on and decompression of the spinal Cord occurred. The Plaintiff was eventually forced to retire from his job.

Legal proceedings

These were commenced on the 8^th May 2020. There were the usual notice for particulars and replies served.. A defence was filed on the 5^th July 2021. This was a full defence with a denial of all wrongdoing and causation.  The defence lacked the appropriate detailed particulars of the grounds of the defence. Thus, the Plaintiff embarked upon a long and protracted dispute with the Defendants requiring the issue of multiple notices of motion so as to secure adequate particulars of the grounds upon which the Defendants were denying liability.  Ultimately, the Defendants gave proper particulars of their defence on the 21^st June 2020

Core Allegations of Negligence Against the Defendant

The essence of the Plaintiff’s case was that the Defendants were negligent in respect of both attendances at the A & E Department of the Defendant hospital.  On the first occasion on the 24^th May 2018, the Plaintiff was at the A & E Department for a total of 17 hours and no attempt was made to act upon the emerging “red flag” signs or symptoms or the  suspected diagnosis of cauda equina syndrome which had been raised by the GP who had examined the Plaintiff. It was the Plaintiff’s case that an urgent MRI scan should have been performed urgently upon first arrival and would have diagnosed evolving cauda equina syndrome.  Instead, after 17 hours, the Plaintiff was discharged to routine care to be given an Outpatients Department appointment and routine outpatients MRI scan. A second plank of the Plaintiff’s claim was that when the Plaintiff reattended on the second occasion, at 2022 hours on 25^th May 2018, there was a further delay of twelve hours in performing an MRI scan and surgery  and a further opportunity lost to urgently treat and decompress the Plaintiff’s spine. It was the Plaintiff’s case that had urgent surgery been performed within hours and before midnight on the 25^th May 2018, it was likely that the Plaintiff’s bladder and sexual function could have been preserved.

Core Grounds of Defence

The Defendant’s further replies to particulars dated the 21^st June 2022 pleaded that;

“It is accepted that the delay which occurred on presentation to the Emergency Department on the 24^th May 2018 from triage to review by a medical practitioner did not comply with a reasonable standard.  It is expressly denied that delay from triage to review on the 24^th May  2018 contributed to the injury alleged. When reviewed by the medical staff, the care assessment and management was above a reasonable standard.  The Plaintiff was referred to the Orthopaedic Team on call who were of the opinion further investigation could be managed as an outpatient.  On the 25^th May 2018, the care delivered by the Emergency Department medical staff was above a reasonable standard and exceeded that of a medical practitioner of equivalent specialisation status and skill acting with ordinary care”.

The Defendants went on to plead that:

“The Defendant denies the acts or omissions alleged to constitute wrongdoing on the part of the Defendant and asserts the Plaintiff did not have cauda equina syndrome. The Defendant further asserts the Plaintiff was at all material times treated appropriately. While arguably more appropriately a matter for evidence, the Defendant asserts the Plaintiff had a lumbar disc prolapse simpliciter”.

It should be noted that these particulars from the Defendants were only forthcoming as the Plaintiff had issued a motion seeking to compel the Defendant to provide full and detailed particulars of the matters pleaded in their defence

Discovery

There was a massive row with the Defendants in relation to discovery. In particular, the Plaintiff was seeking discovery of the hospital protocols for the treatment of suspected cauda equina syndrome and our patient’s presenting to the A & E Department with acute back pain.  initially it was asserted by the Defendants that there were no written protocols.  This was not accepted by the Plaintiff. Not least because the plaintiff was aware that there was an internal hospital inquiry report into this particular incident and that internal inquiry report, referred to the hospital making a decision to amend their protocols. The Plaintiff chased the Defendant’s remorselessly on the issue.  Initially an Affidavit was produced asserting there were no protocols. Subsequently, a supplemental Affidavit of Discovery was produced which produced some protocols but it was apparent from the documentation produced that the Defendant’s discovery was incomplete in that the amended protocols recommended in the hospitals internal inquiry report were never produced. Eventually, in evidence in in Court it was admitted by the defendants at the trial, that the protocols were never amended.  The nature and completeness of the Defendant’s discovery remained a live issue right up to and during the trial.

Defendant’s Application for a Modular Trial

The Defendants issued a motion seeking to have a modular or split trial with the issues of breach of duty and causation to be dealt with initially and then if the Plaintiff succeeded, to have a later trial of quantum.

The motion went on for hearing before Mr Justice Coffey and after a full hearing lasting some hours, the court refused the Defendant’s application to split the trial.

In summary, Coffey J, did not believe that there would be a saving in court time or expense given that the issues of quantum were inextricably linked with breach of duty and causation and there would be an overlap of a number of witnesses.  He relied upon the dicta of Charlton J in the relevant Supreme Court decision with the comment that to split the trial would tear at the fabric of what the parties had to litigate. The plaintiff was awarded the costs of the Defendant’s motion.

Exchange of Expert Evidence

There are various Schedules of expert witnesses served pursuant to SI391 of 1998.  Ultimately the Plaintiff’s Schedule disclosed 21 expert witnesses intended to be called by him plus two lay witnesses containing approximately 33 expert reports.   Six of these experts were on the issue of liability, the others on quantum issues. The Defendant’s Schedule contained nine expert witnesses, four of whom were on the issue of liability.  As usual, due to the Defendant’s lack of preparedness, there was late exchange of expert evidence.

What was blatantly obvious from the exchange of expert evidence, particularly on the issue of liability was that there was complete disagreement and controversy between the experts as to what had happened to the Plaintiff, what the Plaintiff was suffering from when attending the Defendant hospital in May 2018, what were his prospects for a cure etc.

Following exchange of expert evidence, it was clear that there was a requirement for the Plaintiff’s lawyers to have detailed consultations with the Plaintiff’s medical experts. A number of detailed consultations took place with the experts and the legal team took place by Zoom

Quantum Issues and settlement value

The paper value of this case based on the inability of the Plaintiff to ever work again and dependent upon the real rate of return assumptions made was in excess of € 5million.  Obviously this sum was highly controversial. The Defendants were seeking to argue that the Plaintiff could return to work and had some residual earning capacity.

The defendants, were also contending that the claim for future paid personal care was made by the Plaintiff was grossly excessive.  Thus quantum was heavily in issue.

It is fair to say that the Defendant approached this case on the basis that they wished to limit the damages to the average cauda equina compensation payment that they had dealt with over the previous ten years.  An article published on the State Claims Agency website disclosed that something like 45 previous cases of cauda equina had been settled over the decade. for a total sum of approximately €20 million. Thus, the Defendant had hoped to limit the quantum claim to something within that average range, i.e. approximately €500,000.

On the other hand, the plaintiff’s lawyers believed that this case was exceptional and demanded an award of circa. €3million. The best estimate of the fair value settlement on a full liability basis would be between €3 million and €3.5 million.  It must be borne in mind that the record award in a cauda equina case ever previously achieved by MBLLF was €1.15million.  Anecdotally, it is believed that the maximum previously ever achieved for an award in a cauda equina case in the Irish Courts was circa. €1.5 million.  Whatever way one approached the case, it was obvious that if a damages award of €3million to €3.5millionwas achieved, it would be breaking all previous records.

Defendants intention not to call key factual witnesses

It was obvious from review of the defendants witness schedule that they didn’t intend to call key junior doctors who either treated the plaintiff while in the emergency department or whom had been consulted about his case as documented in the clinical notes. We identified and located the whereabouts of all these key junior doctors and even issued a witness summons for one of them. We did this as we believed that these witnesses would likely completely undermine the defence that was been advanced by the hospital in the pleadings and per their expert reports. Both this firm and junior counsel researched the law on the topic and the adverse inferences the court was entitled to draw from a parties failure to call an expected factual witness when important  facts were in issue.

Trial and settlement

The trial commenced and continued for over 10 days of hearing.

Ultimately, after 10 days of evidence followed by 2 days of lengthy settlement discussions, damages for the plaintiff were agreed in the total sum of €3.5million plus the appropriate order for costs which covered all of the Plaintiff’s costs. The settlement achieved represented the full value of the plaintiffs claim, is an excellent settlement and believed to be a record settlement for a cauda equina injury. The defendant made the settlement without ever admitting liability or offering the plaintiff an apology for the injuries caused.

 

SHOULD YOU REQUIRE ANY FURTHER INFORMATION OR ADVICE CONTACT-

Gillian O’Connor, Managing Partner at gillian@michaelboylan.com Michael Boylan at michael@michaelboylan.com; Ciara McPhillips at ciara@michaelboylan.com