Penningtons Manches LLP’s clinical negligence team has settled a claim against Surrey and Sussex Healthcare NHS Trust following the alleged negligent mismanagement of a nine year old boy’s orthopaedic treatment for a wrist fracture in 2002.
The client sustained an injury to his right wrist in 2001 having fallen from a tree. He was initially taken to Crawley Hospital where he was diagnosed with a displaced fracture of his right radius and a fracture of this right ulna. He was transferred to East Surrey Hospital where he underwent manipulation under anaesthetic. His fracture was subsequently found to have displaced again and he was admitted for open reduction and internal fixation (ORIF) surgery in August 2001, during which metal plates were fixed into place.
The operation was a success and, following a review in May 2002, the fracture was noted to have healed. He was admitted to hospital for removal of the metal plate in June 2002. Following the operation, the client had swelling and bruising to his right hand and wrist along with tightness in the forearm. Despite this, he was discharged from hospital. Thereafter he presented to the Accident and Emergency department on two occasions with complaints of bleeding through the wound. He was readmitted to hospital where it was noted that a haematoma (a collection of blood) had formed around the wound. He was admitted for further surgery, during which it was noted that the surgeon had cut the right radial artery in three places.
The Penningtons Manches clinical negligence team was instructed by the client when he turned 18 to investigate whether the surgeon was negligent in damaging the radial artery during the removal of the metalwork or whether this would be regarded as a recognised risk of the procedure. Expert evidence was initially obtained from an orthopaedic surgeon which concluded that, while damage to the radial artery was a recognised complication, there was a distinction between a surgeon damaging the radial artery and cutting the radial artery in three places.
It was the expert’s view that this surgeon had performed the surgery in a substandard way by failing to identify the location of the radial artery and site the operative field sufficiently far away so that there could be no possibility of damage or, alternatively, failing to identify that he had cut the radial artery and repairing the same. It was the expert’s view that, had the surgeon taken adequate steps to protect the radial artery during the removal of the metalwork, the client would have enjoyed a short, uneventful recovery and would have avoided a wound infection and the need for further surgery. As a result of these failures, he was left with some residual weakness to the right forearm and extensive scarring which constituted a significant cosmetic disfigurement.
A claim was presented to Surrey and Sussex Healthcare NHS Trust but the trust denied any failings in the client’s care and court proceedings were issued. Throughout the case, the trust maintained that damage to the radial artery was a recognised complication and that the surgeon had not breached their duty of care towards the client.
Following the issue of court proceedings, Penningtons Manches commissioned further evidence from a consultant plastic surgeon and consultant psychiatrist. The plastic surgeon commented that the scarring to the client’s right forearm was far more extensive because of the need for further surgery. The consultant psychiatrist was of the view that the client had suffered a recognisable psychiatric injury as a result of these events.
After the issue of proceedings, the parties worked their way through the court timetable. The defendant maintained its denial of liability but, just prior to the exchange of expert evidence, the trust made an offer to settle the claim calculated according to its perceived litigation risk. The defendant maintained that this was a case that it would fight all the way to trial but a settlement was reached after negotiations.
This case was an interesting example of where a claimant who was a child at the time of the events, due to the Limitation rules, was able to make a decision to look at a case when they became an adult, despite the lapse of a number of years.
Amy Milner, the solicitor who dealt with the case at Penningtons Manches, comments: “Although we were ultimately able to reach a settlement with the defendant, this was an extremely difficult case where both parties had supportive expert evidence, and where the defendant was unwilling to accept any failings in its care and was prepared to fight the case. We had to take it a long way down the line before it was willing to offer any settlement to our client.
“While our client was happy to have agreed a settlement with the defendant, he has been left severely affected by the complications he suffered with his treatment at such a young age. These have left him very anxious about any medical care that he now needs and self-conscious of his scarring.
“We are seeing an increase in the number of cases in which the defendant adopts a robust approach and only enters into negotiations after a significant amount of time and costs have been incurred investigating matters and the claimant has shown their confidence in their case by issuing court proceedings. This is often frustrating for clients who mainly just want answers and some form of acknowledgement that there have been failings in their care.”