The Penningtons Manches clinical negligence team has settled a claim against Surrey and Sussex Healthcare NHS Trust following the negligent mismanagement of our client’s orthopaedic treatment when he was nine years old.
Our client sustained an injury to his right wrist when he fell from a tree. He was initially taken to Crawley Hospital where he was found to have suffered 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 then found to have displaced again and he was admitted for open reduction and internal fixation (ORIF) surgery, during which metal plates were inserted. The operation was a success and, following a review, the fracture was noted to have healed. Our client was subsequently admitted to hospital for the removal of the metal plate. Following the operation, he had swelling and bruising to his right hand and wrist along with tightness in the forearm. Despite this, he was discharged from hospital.
He subsequently attended the Accident and Emergency department twice 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.
Following these events, our client suffered ongoing weakness in his right arm and extensive scarring to his right forearm which caused him anxiety during his adolescence.
When our client turned 18, the Penningtons Manches clinical negligence team was instructed to investigate whether the surgeon had breached his duty of care to the client by damaging the radial artery during the removal of the metalwork and expert evidence was initially obtained from an orthopaedic surgeon. Our expert concluded that, although 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 as had happened in this case. It was his view that the surgeon had breached his duty of care by failing to identify the location of the radial artery and to 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 to repair it.
It was alleged that, if the surgeon had taken adequate steps to protect the radial artery during the removal of the metalwork, our client would have enjoyed a short and uneventful recovery and avoided a wound infection and the need for further surgery. However, 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 on this basis. It denied any failings in our 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 his duty of care to our client.
We commissioned further evidence from a consultant plastic surgeon and a consultant psychiatrist. The plastic surgeon commented that the scarring to our client’s right forearm was far more extensive because of the need for further surgery. The consultant psychiatrist was of the view that our client had suffered a recognisable psychiatric injury as a result of these events and the cosmetic deformity to his arm.
The defendant maintained its denial of liability but, prior to the exchange of expert evidence, the trust made an offer to settle the claim, following which the parties were able to reach a settlement which reflected the risk to both parties.
Amy Milner, the solicitor who dealt with the case, said: “Although we were 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. Our client has been left severely affected by the complications he suffered at such a young age and he is very anxious about any medical care that he now needs. It was therefore disappointing that the trust was not willing to make any formal admissions of their failings in care, and that we had to proceed some way through a court timetable to obtain a resolution.
“This is one of a number of cases where the defendant has adopted a robust approach and only entered into negotiations once a significant amount of time/costs have been incurred investigating matters - and is one of the reasons why clinical negligence claim costs escalate in smaller value cases. This is often frustrating for clients who just want answers and an acknowledgement that there have been failings in their care.
“We are concerned about the implications of the proposals for fixed fees in clinical negligence cases for this sort of case. Our client had a viable claim but might have been forced to discontinue on costs grounds or settle at a much lower level if it were subject to fixed costs.”