Rosemary Chapman v Mid & South Essex NHS Foundation Trust

A pain physician must remain vigilant for new or changing symptoms in a patient with chronic pain. Where the presentation might indicate new pathology, the physician must undertake appropriate assessment and investigations before adopting a treatment plan based on the known condition.

Advice about the benefits and risks of spinal surgery lies outside a pain physician’s remit where it requires a definitive surgical judgment. In a clinical negligence claim, contributory negligence is exceptional and requires proof of claimant fault, causation and a just and equitable reduction.

The claimant alleged that delays in diagnosing and treating a thoracic disc prolapse caused paraplegia. The claim concerned consultations with a pain physician in 2009 and 2010 and an assessment by an emergency nurse practitioner on 9 March 2017.

The court considered whether the pain physician breached his duty by failing to investigate possible new pathology and by advising on surgery, whether the claimant would have undergone earlier surgery and recovered, whether the nurse practitioner’s examination was negligent, and whether the claimant contributed to her injury by not attending hospital on 15 March 2017.

1. Dr Bopitiya. Applying the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, as qualified by Bolitho v City and Hackney Health Authority [1998] AC 232, the court found a breach in 2009. Reported falls, leg-giving-way symptoms and deterioration in function were capable of indicating new spinal pathology. It was unsafe to attribute them to chronic pain without further enquiry. An updated MRI scan and full neurological examination were required.

2. The court also found breaches in 2010 because no adequate updated history or examination was undertaken. Definitive advice that surgery would not help, and detailed advice about surgical options, exceeded the remit of a pain physician.

3. The thoracic disc prolapse was symptomatic in 2009–10. A surgeon would have advised surgery, and the claimant would probably have accepted it because the surgery would have reduced the risk of paralysis. Earlier surgery would have resulted in full neurological recovery, although the pre-existing pain and disability from spondylolisthesis would have remained.

4. ENP Nice. The claim concerning the 9 March 2017 assessment was dismissed. On the balance of probabilities, the nurse’s account of the history and examination was preferred. She had conducted the relevant assessments, including reflex testing which she had failed to record. The technical imperfection in recording or performing the straight-leg-raise test did not make the overall assessment unreasonable.

5. Had the claim against ENP Nice succeeded, surgery would probably have occurred on 11 March 2017 or shortly afterwards and would have produced the same neurological recovery. By 15 March 2017, however, the claimant had probably become paraplegic, so intervention then would not have altered the outcome.

6. The allegation of contributory negligence failed. The defendant did not establish claimant fault causative of damage, and any reduction would in any event have been unsupported on the evidence. The claim against Dr Bopitiya was upheld; the claim against ENP Nice was dismissed. Quantum directions were required.