Zarb v Odetoyinbo

A general practitioner is not negligent merely because an earlier referral might have produced a better medical outcome. Where the alleged breach is a failure to make an urgent referral, the claimant must prove both what the referred specialist would probably have done and that the specialist’s alternative course would have been negligent. The court must apply the Bolam test to competing expert opinions. Under Bolitho v City and Hackney Health Authority, professional opinion may be rejected only where it cannot withstand logical analysis. A GP may reasonably manage bilateral sciatica conservatively, provided appropriate warnings are given about symptoms requiring urgent medical attention. The claim failed because the defendant’s approach was supported by a responsible body of medical opinion and the necessary causation could not be established.

The claimant developed permanent bladder, bowel and sexual dysfunction after emergency surgery for cauda equina syndrome on 27 September 2001. She alleged that her general practitioner had negligently failed, three days earlier, to make an immediate or same-day referral when she presented with severe back pain and bilateral sciatica.

The claimant relied on expert evidence that bilateral sciatica required urgent admission and investigation. The defendant relied on evidence that bilateral sciatica without cauda equina symptoms did not require emergency referral, but required appropriate warnings about urinary, bowel or perineal symptoms. The central questions were whether the defendant had breached his duty and whether an earlier referral would probably have avoided the claimant’s disabilities.

1. Outcome. The claim was dismissed. The defendant was not in breach of his duty of care.
2. Causation. The claimant could not establish what surgeon would have responded to a hypothetical same-day referral, what an MRI scan would then have shown, or that surgery before the onset of cauda equina symptoms would have been the only proper course. The court declined to speculate or treat the case as one involving loss of a chance.
3. Specialist standard. Applying Bolitho v City and Hackney Health Authority [1998] AC 232, the court held that the opinion of Mr Macfarlane was capable of withstanding logical analysis. His assessment balanced the risks of prophylactic surgery against the risk of later cauda equina syndrome and was supported by a responsible body of specialist opinion.
4. Referral by the GP. If a neurosurgeon could reasonably decline emergency admission and surgery, provided the patient was warned to return on developing saddle anaesthesia or urinary or bowel dysfunction, a GP adopting an effectively equivalent course could not be negligent. A same-day referral might have been good advice and would probably not have been negligent, but it was not the only reasonable course.
5. The Royal College of General Practitioners’ February 2001 guidelines created an additional obstacle to finding that the defendant’s management was negligent. The defendant had recorded the absence of urinary and bowel symptoms and had acted on a practice accepted as proper by responsible medical opinion.

Not stated in the judgment.