Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors

In a clinical negligence claim involving suspected cauda equina syndrome, breach is assessed by the Bolam/Bolitho standard: whether the response fell outside the range of reasonable and logically justifiable options, assessed in context, including urgency and finite hospital resources. The law does not impose an absolute requirement that every step occur at the earliest practically possible moment. On causation, CESI and CESR are not rigid categories. The court may assess outward signs and pathophysiology on the balance of probabilities. Painless urinary retention, loss of the urge and ability to urinate, and an insensate bladder may establish CESR before overflow incontinence. Appellate courts should not re-try primary findings or expert evaluations unless the decision was not reasonably open.

The appellant claimed that an out-of-hours GP should have referred him directly to an orthopaedic team after suspecting cauda equina syndrome, that the ambulance service caused an avoidable 19-minute delay, and that the hospital trust negligently delayed MRI investigation and surgery. The Deputy Judge rejected the allegations against the GP and hospital trust and found the admitted ambulance breach causally immaterial. She also found that, on the balance of probabilities, the appellant had reached CESR by 1203, so earlier surgery would not have improved the outcome. The appeal challenged breach, factual causation, alleged adverse inferences from evidential gaps, and legal causation.

Appeal dismissed unanimously. The Court of Appeal upheld the Deputy Judge’s decision.

1. On an appeal involving factual or evaluative findings, the question is whether the decision was wrong. The appellate court must not re-try the case or substitute its own assessment merely because another view was possible. Intervention is justified where there is no evidence supporting a finding or where no reasonable trial judge could have reached it. The court applied the approach described in Perry v Raleys Solicitors [2019] UKSC 19 and the evidence-based caution in Fage UK Limited v Chobani UK Limited [2014] ETMR 26. A judge need decide the principal issues and give intelligible reasons, but need not address every disputed point or give reasons for reasons.
2. For clinical negligence, the Bolam standard, as elaborated in Bolitho, requires assessment of whether the response fell outside the range of reasonable and logically justifiable responses. Reasonableness is contextual. The fact that a patient may be an emergency does not impose a gloss requiring every step to occur as soon as practically possible. Relevant context included the competing urgent cases and the resources of a busy district general hospital. Davis LJ added that courts should avoid generalised pronouncements on doctors’ obligations and focus on the individual medical situation.
3. The GP’s advice to attend the hospital’s A and E department was reasonable. There was no negligent delay by Trust 1: consulting the registrar was a reasonable option, the MRI request was treated as urgent in practice, and the time taken to obtain the images was not shown to be unreasonable. The ambulance delay made no difference.
4. For causation, CESI and CESR should not be treated as rigid categories where the medical literature provides competing or imprecise definitions. The court should assess the patient’s history, outward signs and pathophysiology on the balance of probabilities. Loss of executive bladder control and an insensate bladder may establish CESR before overflow incontinence. Overflow is a secondary marker and may occur after irreversible damage. On the evidence, CESR had been reached by 1203. Realistic reasonable timings also showed that decompression could not have occurred before 1710 even on the appellant’s case, after the alleged 1500 cut-off.
5. The court considered Wright v Cambridge Medical Group [2011] EWCA (Civ) 669, but the issue did not arise because the GP was not negligent. The decision did not establish a universal rule governing successive negligent acts.

• Court of Appeal (Civil Division) — In [2020] EWCA Civ 1523, the appeal was dismissed.
• High Court — Anne Whyte QC, sitting as a Deputy Judge, rejected the negligence allegations against the GP and hospital trust and found the ambulance service’s admitted breach causally immaterial. No citation for the decision is stated in the judgment.