Hussain v Bradford Teaching Hospital NHS Foundation Trust & Anor

In a clinical-negligence claim involving cauda equina syndrome with retention, breach of duty does not establish liability without proof that the breach probably caused measurable injury. A claimant must prove actual damage on the balance of probabilities. A mere increase in risk, or a chance of a better recovery, is insufficient. Where the claimant had already reached the irreversible or generally irreversible stage before the negligent delay, the delay will not establish causation unless the evidence demonstrates a probable, discernible and measurable improvement that earlier treatment would have achieved. The assessment must distinguish incomplete cauda equina syndrome from the retention stage and must be based on reliable expert evidence rather than vague or anecdotal opinions.

The claimant brought separate clinical-negligence claims against an orthopaedic surgeon concerning treatment in June 2006 and against a hospital trust concerning his admission between 27 and 30 August 2006. He developed cauda equina syndrome, reaching the retention stage by the morning of 28 August, and underwent surgery late on 30 August.

The surgeon conceded that the claim against him could not be maintained. The hospital admitted inadequate treatment, including failures to investigate urinary function, perform neurological examinations and arrange an MRI scan. The central issue was whether the resulting 48-hour delay caused the claimant’s condition or deprived him of a probable, measurable improvement.

1. Claim against the second defendant. The claim was rejected. The contemporaneous evidence showed that a proper examination had been performed. The claimant’s symptoms on 19 June 2006 did not present red flags requiring an MRI scan or further surgery. The expert evidence established that no earlier investigation or treatment would probably have prevented the later development of cauda equina syndrome.
2. Breach by the first defendant. The hospital was negligent. On the morning of 28 August, it should have investigated and monitored urinary output, carried out neurological examinations and ordered an MRI scan. These omissions allowed the claimant’s rapidly developing condition to go unnoticed. The negligent delay was 48 hours. Surgery should have taken place late on 28 August or early on 29 August, rather than late on 30 August.
3. Causation. Applying the approach in Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104 and Hotson v East Berkshire District Health Authority [1987] AC 750, the claimant had to prove actual measurable damage. A loss of a chance of a better recovery was insufficient.
4. The claimant had reached CESR by about 7 am, and certainly by noon, on 28 August. The expert evidence, apart from that of Mr McLaren, showed that surgery approximately 12 hours after CESR would probably not have produced a good recovery. The court preferred the evidence of the four experts whose opinions were supported by a coherent analysis and, generally, published literature. Mr McLaren’s evidence did not reliably distinguish CESI from CESR patients and was based on undocumented anecdotal experience.
5. The alternative case that earlier surgery would have left the claimant in a better condition also failed. The evidence suggested only a possibility of improvement and did not identify any probable, discernible, significant or measurable improvement. The claim against the first defendant therefore failed on causation.