Settlement for client who suffered ongoing problems in her left foot following negligent bunion surgery

Case Studies

Settlement for client who suffered ongoing problems in her left foot following negligent bunion surgery

We have secured settlement for our client who pursued a clinical negligence claim against her former private orthopaedic surgeon, Mr Sait. This is one in a series of cases in which we are advising patients treated by Mr Sait.

The claim consisted of two main allegations: that Mr Sait (i) failed to obtain our client’s informed consent to treatment; and (ii) performed our client’s foot surgery using an outdated technique which carried a high risk of failure.

Factual background

In October 2015, our client attended her GP complaining of some pain along the inside of her left foot. Her doctor identified bunions (known as ‘hallux valgus’) and referred her to Mr Sait for an assessment and initial management.

Our client attended three consultations with Mr Sait. The first consultation was primarily to do with some pain she had also experienced in her left hip. Mr Sait also took x-rays of our client’s left and right feet and recorded that she had significant bunions on both feet, and recommended surgery as treatment.

Our client was apprehensive, with a general resistance to surgery unless absolutely necessary, but she was given no guidance on alternative options. At the third consultation there was a discussion about the surgery itself and our client asked Mr Sait a number of questions, including whether he could perform the surgery so that the scar was on the side, rather than on top, of her left foot, and how the surgery could succeed if he was not going to use any form of internal fixation (such as wires or pins) to secure the toe after he had operated. There was no evidence in the medical records that Mr Sait had discussed with our client the alternative management options available to her and, in response to her specific questions, our client recalls being told that his way of operating was the only method and that the bones simply heal when a foot is in a plaster cast without the need for any internal fixation.

Our client agreed to proceed with the surgery recommended by Mr Sait because she was not aware of any other option available to her. Her surgery was subsequently performed at Fawkham Manor Hospital on 6 April 2016.

After the surgery our client experienced a very poor outcome. Her foot was very swollen and painful for months after the operation. Mr Sait advised her that her outcome was normal and that her pain and swelling would settle. Our client also experienced problems with the position of her left big toe, which did not touch the ground when she stood up. As a result, the weight through her left foot was borne by her smaller toes, which caused her to experience considerable pain in her left foot.

Our client’s management under Mr Sait ceased after a consultation in July 2016, when she was told that Mr Sait had been suspended from treating patients at Fawkham Manor Hospital. She eventually saw another foot and ankle surgeon, Mr Willmott, who told her that Mr Sait had performed a surgery that was very outdated and wasn’t used by orthopaedic surgeons practising at the time. Mr Willmott recommended revision surgery.

Our client was initially reluctant to have revision surgery. Mr Willmott had not given any guarantees that revision surgery would solve her problems and she was afraid that her outcome would be even worse. She therefore delayed revision surgery by 12 months, and used orthotic inserts to try to manage her symptoms and improve her pain.

After a number of months of trialling orthotic inserts, our client’s outcome was not materially better. Her left big toe did not touch the ground and she continued to experience pain in the front of her foot, known as ‘transfer metatarsalgia’.

Our client elected to undergo revision surgery under the care of Mr Willmott on 4 December 2017. Her outcome from the revision surgery was vastly improved compared with the outcome she had experienced after her initial surgery under Mr Sait; however, she continued to experience ongoing left foot pain which caused her walking tolerance to be limited to approximately 100 metres. Her walking gait was also affected and she developed pain in both of her knees.

The claim

Penningtons Manches Cooper was instructed and, after obtaining a copy of our client’s medical records, we obtained evidence from an expert foot and ankle surgeon. That expert confirmed his opinion that i) our client’s bunions in 2016 were mild (not “significant”, as stated by Mr Sait) and that our client should have been advised about the conservative (non-surgical) options for managing her foot pain. She should have been advised to use painkillers, wear wider shoes and trial orthotic inserts. It was our expert’s opinion that, had our client attempted conservative options to manage her left foot symptoms, her bunion would not have progressed and she would never have needed left foot surgery at all.

Our expert was of the opinion that, if our client was correct, and if she had asked Mr Sait specific questions about the way in which the surgery was performed and how the bones would heal without internal fixation, he had a duty to inform her that there were other methods of performing surgery which did result in a scar to the side of the toe and which did utilise internal fixation. Mr Sait’s failure to advise our client of these options was a breach of duty in his care towards our client.

It was also our expert’s opinion that the type of surgery performed by Mr Sait was out of date and had not been used by reasonable and responsible orthopaedic surgeons since the early 2000s. Since then, foot and ankle surgeons had favoured surgery that included some form of internal fixation, which gives patients a much greater chance of a good outcome and minimises the risk of complications occurring.

Following receipt of the expert evidence, and after discussing that evidence with our client, we sent a formal letter before claim to Mr Sait’s legal representatives. It was alleged that he had (i) failed to recommend conservative management of our client’s left hallux valgus before surgical intervention; (ii) failed to obtain our client’s informed consent to treatment; and (iii) performed surgery that was out of date and would not be supported by a reasonable and responsible orthopaedic surgeon in the same circumstances.

It was alleged that had our client been appropriately advised by Mr Sait, she would not have had any surgery at all; instead, she would have worn wider shoes and used orthotics to manage her foot symptoms. In the alternative, it was alleged that had our client been properly advised, she would have agreed to surgery that used internal fixation. She would likely have had a good outcome without suffering chronic left foot pain and a mal-positioned left big toe, and would not have required revision surgery.

Mr Sait denied all allegations in full. He argued that our client had already exhausted conservative options for her foot symptoms, that he had discussed with our client the alternative options for treatment and that the surgery he performed was done using an acceptable technique.

Our expert remained robustly in support of our client’s case and did not accept the arguments presented by Mr Sait. Court proceedings were subsequently issued and served upon him.

The claim proceeded a long way through the court timetable. The parties exchanged witness evidence and, prior to exchange of expert evidence relating to liability, the solicitor for the defendant advanced an offer to settle the claim. We reviewed the offer, which reflected a small percentage of the overall value of the claim and was therefore rejected. We advanced our own offer to settle the claim for £140,000, but this was not accepted by the defendant. No further settlement discussions took place at that time.

The parties continued through the court timetable and exchanged expert evidence relating to issues on liability, causation and our client’s condition and prognosis, as well as their respective schedules which set out the pleaded value of the claim, which took the parties to within seven weeks of trial. We maintained our allegations against Mr Sait, and he maintained his denials of the allegations.

In January 2021, prior to expert joint discussions, the solicitor for Mr Sait advanced a further offer to settle the claim in full and final settlement. Again, we assessed the offer and advised our client that to accept it would represent an under-settlement of her claim. Given the proximity to trial, and accounting for the fact that the claim was denied in full on both liability and causation, we advised our client to make a competitive offer, which would have costs consequences for the defendant if our client ultimately beat that offer at trial. After some further discussions with the solicitor for the defendant, our offer of £95,000 was eventually accepted in full and was the final settlement of our client’s claim. Mr Sait made no formal admission of liability in this case.

We are pleased to have been able to achieve a reasonable settlement for our client to compensate her for the pain and suffering she experienced, as well as for a large proportion of the financial costs she incurred as a result of her poor outcome and is likely to incur in the future because of her ongoing symptoms.

Should you have concerns over the management of foot and ankle injuries, either in an NHS or private setting, please do not hesitate to contact a member of the clinical negligence team.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP