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£3 million settlement following negligent below-knee amputation

Posted: 07/11/2017

Penningtons Manches has settled a claim for £3 million for a client who suffered a below-knee amputation of his left leg as a result of negligent care at the Royal Berkshire Hospital in Reading.

The patient was in his late 20s when he attended the hospital with multiple wounds after being attacked. Most of these were treated acceptably, but there was a vascular injury to his left thigh that was not properly assessed and treated. This injury was examined and clinical signs of an impaired blood supply were noted, but it was decided simply to monitor this overnight.

The following morning, he was taken to theatre to treat his wounds, but there was no surgical exploration at that time of the left thigh injury. That afternoon, he began to suffer considerable bleeding from the left thigh wound. Emergency surgery then had to be arranged, during which extensive damage to both his common femoral artery and common femoral vein was identified.

The vascular surgeon who operated properly attempted to repair the arterial damage by grafting the site using a section of vein taken from the patient’s right leg. The surgeon chose not to repair or reconstruct the damage to the common femoral vein and simply ligated the ends, tying them off, thus stopping the vein from functioning. As a result, the blood supply continued into the patient’s lower leg, including through the arterial graft, but it became increasingly swollen because the venous system could not adequately drain the blood being supplied to the leg. This is a known phenomenon, called compartment syndrome. The patient experienced extreme pain and swelling as a result. This had to be treated with further surgery, in which fasciotomies were performed to two of the four muscle compartments in his lower leg, to open these compartments up to release the building pressure caused by the increasing volume of blood in his lower leg. There are four muscle compartments in the lower leg and by then, all of these should have been decompressed by fasciotomy, not just two.

Following the fasciotomies, the patient’s deep thigh wound was packed, but left open. Over the following days, he suffered worsening pain and decreasing sensation and movement in his left foot and toes.

Three days after the fasciotomies, he had surgery partially to close the thigh wound, but the artery graft was still not covered properly. It became clear that the wound had become infected. It had to be re-opened surgically to remove dead tissue and a few days later, further surgical debridement removed more necrotic tissue. The wound was then closed, but still without tissue cover of the damaged blood vessels.

Ten days later, the thigh wound began to bleed profusely. Surgical exploration found the artery graft had failed and become blocked. An attempt was made to repair the graft, which was then covered with muscle. The patient’s leg became cold and painful. He lost motor function and sensation in his left foot. He had a further fasciotomy, but suffered infection and swelling and it was another month before his wound eventually closed. He remained with chronic ischaemia (impaired blood supply) in his left lower leg and suffered leg ulcers. He developed gangrene in his left little toe, which had to be amputated. He was discharged after almost four months because the hospital said there was nothing further it could do.

Two days later he was admitted via his GP to the East Surrey Hospital because of his continuing ischaemia. He had a vascular bypass to try to improve the blood supply to the left lower leg, followed by skin grafts, but the ischaemic damage to his nerves led to a left foot drop.

He continued to suffer with extreme pain and swelling in his left calf, recurrent ulcers and infections over the next three years. These events all affected him psychologically and he was referred for developing Post-Traumatic Stress Disorder for mental health treatment.

Ultimately, the level of pain was intolerable and could not be controlled with medication. On clinical advice, the patient took the decision to undergo a left below knee amputation to try to rid him of his pain.

His rehabilitation following amputation was difficult because of considerable issues fitting a prosthesis comfortably on the NHS. The prosthesis caused rubbing of the skin on his  residual stump, leading to recurrent problems with breakdown of the skin and infection. The infections required antibiotic treatment and he could not wear a prosthesis during this time. He would return to wearing his prosthetic once the stump wound healed, when the cycle would then start again.

Penningtons Manches obtained the patient’s clinical notes and records and instructed an expert vascular surgeon to consider and report on the vascular surgery and management that he had received. It was the expert’s opinion that there were a number of breaches of duty on the hospital’s part for failing acceptably to assess, investigate and treat the damage to the femoral vessels with which the patient presented at the Royal Berkshire Hospital at the outset. There were further failures in negligently delaying surgery to investigate and repair the arterial damage and in deciding to ligate the vein, rather than reconstruct or repair it. The failure also to cover the damaged vessels with a proper muscle flap was negligent and exposed the patient to the risk of arterial graft failure. When that graft did fail, the surgical attempt to repair it did not re-establish the blood supply and was itself negligent, as was the decision to discharge him with the critical ischaemia he was suffering.

The vascular expert’s view was that the combination of these breaches of duty led to the patient’s – reasonable – decision to undergo amputation, but this would have been avoided if the injury had been properly assessed, investigated and treated when he first attended at the Royal Berkshire Hospital. With acceptable care, he would have required a period of several months to recover, but would have been back to the same level of function and ability as before he sustained these injuries.

Penningtons Manches’ clinical negligence team put these allegations to the hospital in a formal Letter of Claim. The response to that letter did not fully address the allegations that had been made. It did admit a number of breaches of duty, including inadequate initial assessment. The hospital’s position was that it should have diagnosed the serious vascular damage at that time and if this had been done, it would have transferred the patient to a different hospital for treatment. It also accepted the surgery that followed failed adequately to repair the vascular damage. Despite its admissions, the hospital would not admit at that stage that it had caused any damage that the patient would otherwise have avoided: its position was that he had serious injuries and even had his leg not been amputated, its function and usefulness were doubtful and the eventual outcome might not have been all that different.

The hospital clearly disputed the claim so court proceedings were issued to progress the case. Penningtons Manches also investigated the wide financial impact of amputation on the patient. The clinical negligence team was particularly concerned at the problems he was experiencing with inadequate NHS prosthetics and arranged his assessment for improved prosthetics that are available privately. Many of these are functionally very advanced, but are also consequently very expensive. The patient had been athletic and sporting before his injuries and was keen to resume physical training, which he was struggling to achieve with NHS prostheses and the recurrent infections he was suffering. He was often limited to using a wheelchair to mobilise as a result.

These problems in turn led to the need for additional care and assistance and better equipment to help him manage, particularly during times he cannot wear his prosthetics. Adaptations to his home are also needed, to ensure it is wheelchair-accessible and enables him, for example, to cook and to shower and to accommodate a carer when he needs live-in help. He will also need therapy, both physically and to help cope with the considerable psychological impact of amputation. His employment prospects are also affected by his amputee status. These aspects all required input from suitably qualified experts to assess the extent of his reasonable needs and the costs associated with providing for these.

In its formal defence, the Royal Berkshire Hospital made similar admissions to its earlier response to the Letter of Claim, in so far as the alleged breaches of duty were concerned, but did go further in admitting the damage caused as a result. Importantly, the hospital admitted that had it treated the patient acceptably, he was likely to have avoided below-knee amputation. While this marked a significant shift in the hospital’s position, the defence made no admissions as to the patient’s condition and prognosis or the alleged psychiatric impact of these events on him. Further expert evidence had to be obtained in this regard.

Both parties proceeded to obtain evidence over the following months from experts in a number of key fields relevant to the claim. These enabled Penningtons Manches to prepare a formal schedule, setting out its client’s financial losses to date and in the future. In the meantime, given the admissions contained in the defence, the firm requested an interim payment towards its client’s damages (compensation), which was used to enable him to move to more suitable accommodation and to arrange a trial of private prosthetics and rehabilitation to maximise the benefit he derived from these.

While expert evidence narrowed some of the issues between the parties, there remained areas of significant disagreement. The nature of amputation claims is that there are some individual aspects, for example, specific models of prosthesis and accommodation issues, which can have a very substantial financial impact. There are also difficulties assessing future prognosis which can have a profound effect on the level of care an amputee may need, particularly in later life.

As a result, there were key areas of dispute in this case, particularly over the full extent and cost of the private prosthetics the patient needed; his ability to work until normal state retirement age, and therefore whether he was likely to suffer any material loss of future income and pension or not; the accommodation costs it was reasonable for him to recover as  a result of the negligence; and the care he would need to cope with episodes of infection and illness throughout his life and particularly, as he ages.

Settlement negotiations were possible only once the various experts involved in key issues had met to discuss the case which ultimately settled the week before the High Court was due to hear the claim and assess the level of damages payable.

The claim was handled by Andrew Clayton, senior associate, whose specialist clinical negligence expertise includes complex claims involving amputation. The case settled for £3 million, reflecting the expensive costs of high performing prosthetics and the life-changing impact of amputation on the patient.

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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