Recent Clinical Negligence Cases
Case Study 1: Failed to identify nerve damage caused during operation
The Clinical Negligence team at Osbornes Law have this week successfully negotiated the settlement of a case in which our client sustained a serious injury to her superficial peroneal nerve during surgery to her right ankle in September 2014. The case was settled at a virtual Joint Settlement Meeting, with the legal teams for the Claimant and the Defendant NHS Trust meeting via Zoom in an attempt to resolve the case. Our client was represented by Nick Leahy, a solicitor in the Clinical Negligence team, Andra Popoiag, a paralegal in the Clinical Negligence team, and Helen Pooley (Counsel) of 9 Gough Chambers.
Our client, IM, sustained a fractured ankle in an accident in Romania in September 2014. She travelled back to the UK where she attended the Accident and Emergency Department of her local hospital Trust. She was told that she had fractured her ankle and that she would need to undergo an open reduction and internal fixation (ORIF) procedure. The operation took place on 7 September 2014. During the procedure, the surgeon damaged IM’s superficial peroneal nerve. This was not identified during the procedure. Following the surgery IM immediately began to complain of sharp pain and numbness in her lower right leg, ankle and foot, which had not been present prior to the operation. However, she was told that this was normal.
IM was later discharged from hospital and she attended various follow up appointments over the next few months. At an appointment on 25 November 2014 she reported right ankle stiffness to her surgeon. No proper examination took place and she was simply referred for physiotherapy. She attended the physiotherapy sessions as arranged but this did not alleviate her symptoms.
Almost 2 years later, on 6 September 2016, IM reported pain in the lateral aspect of her right foot which localised over and around the metalwork. She also complained of pins and needles in the lateral aspect of her foot which radiated down to the third and fifth toes. She was told the metalwork would be removed in an operation and then she would have a scan.
The removal of the metalwork took place on 8 October 2016. Following this operation IM was told that the surgeon had damaged a nerve in her ankle during the original procedure that took place on 7 September 2014. She was immediately referred to neurosurgeons at the Royal National Orthopaedic Hospital (RNOH).
The doctors at RNOH investigated and eventually they performed a nerve exploration, neurolysis and nerve graft on 4 October 2017. IM was told that her symptoms would improve thereafter. However, by 6 March 2018, although IM had reported her pain had improved slightly, she still had a burning sensation and possibly regeneration pain too. The team at RNOH decided to try alternative treatment and this included the application of Capsaicin patches to try to reduce the hypersensitivity in her foot. IM underwent several of these procedures but they offered little relief to her symptoms.
IM has recently been referred to the pain management clinic at a major London hospital in an attempt to manage her continuing neuropathic pain.
Nicholas Leahy of Osbornes was instructed by IM in March 2019 to pursue a claim against the NHS Trust. Following initial investigations, a Letter of Claim was sent to the hospital in May 2019, and a response was received in November 2019. The NHS Trust admitted that the surgeon had failed to identify the nerve injury during the operation, but argued that the nerve injury was caused non-negligently and that the nerve had been damaged irreparably during the procedure, such that any later diagnosis would not have made a difference to IM’s outcome.
IM’s legal team obtained evidence from a Consultant Orthopaedic Surgeon, a Consultant in Peripheral Nerve Surgery and a Consultant in Pain Management, which was supportive of her case.
The case raised complex issues on both breach of duty, causation and quantum, and negotiations took place with the Defendant’s solicitors during the course of 2020. Various offers of settlement were made by both parties however no agreement could be reached and so in March 2021 the Defendant’s solicitors agreed to attend a Joint Settlement Meeting, via Zoom, in an attempt to resolve the case.
The JSM took place on 10 March 2021 and IM was represented by Helen Pooley of 9 Gough Chambers, Nick Leahy and Andra Popoiag, both of Osbornes. Some important aspects of IM’s case continued to be in dispute, including the type and cost of the treatment which had been recommended by the pain management expert (the cost of neuromodulation treatment). However after just two hours of negotiation the parties were able to agree settlement.
The sum IM has received will enable her to have the neuromodulation treatment which was recommended by the pain management expert and also to take part in a residential pain management programme at a private London hospital to attempt to alleviate her symptoms. Additionally, a sum was agreed to reflect the prolonged period of pain and suffering which IM has endured since the date of her first operation.
Case 2: Investigation into the death of a 14 year old girl during an MRI scan
A teenage girl with autism died following an MRI scan under general anaesthetic. This has sparked an investigation by the Healthcare Safety Investigation Branch (HSIB) into how scanning under general anaesthetic for patients should be reasonably adjusted for those with autism or learning disability.
What is the Healthcare Safety Investigation Branch?
The HSIB was set up as an independent organisation with a mandate to “conduct independent investigation of patient safety concerns in NHS-funded care across England.” They investigate and make recommendations with an aim to improve healthcare systems and processes, to reduce risk and improve safety.
The findings in this case
An inquest found that the child in this case had been under the care of three specialist consultants for a period of 9 years. She was not referred for the investigation of any underlying disorder by a geneticist, despite her parents requesting this on two occasions and; there being a relevant centre near her home. Her underlying condition which caused her death, cardiomyopathy, was therefore undiagnosed.
What is cardiomyopathy?
The NHS’ definition of cardiomyopathy is that it “is a general term for diseases of the heart muscle, where the walls of the heart chambers have become stretched, thickened or stiff. This affects the heart’s ability to pump blood around the body”.
It is a condition which is usually inherited and is thought to affect 1 in 500 people in the UK.
Autism, learning disability and medical assessments
The HSIB study found that children “with autism, learning disabilities and/or learning difficulties often find clinical environments distressing, which may be reflected in their physiological observations. This may result in diagnostic overshadowing, where problems such as autism (or a medical condition) are attributed as the cause of other new problems, rather than considering other underlying causes, thereby leaving other co-existing conditions potentially undiagnosed.”
This was especially relevant in this case where the child presented to the hospital on the day of her MRI with a high heart rate and raised blood pressure. This was attributed to her distressed presentation, even though at the time of the test she was calm. During the MRI scan there were four occasions where she needed intervention due to changes in her heart rate.
Following the HSIB investigation, the following recommendations were made to change the way medical practitioners handle similar cases:
There should be a development in the role and competency framework for learning disability liaison nurses, to ensure that people with learning disabilities and autistic people receive optimal care which respects and protects their rights.
A system should be developed for sharing care plans for patients with autism, learning disabilities or learning difficulties to enable reasonable adjustments to be made e.g. a standardised care passport
Our specialist medical negligence solicitors act around the treatment of people with autism. In one particular case a 26 year old man died due to suffering a hypoglycaemic attack. He lived alone and he was unable to manage his diabetes and had suffered over 100 hypoglycaemic attacks but the mental health services did not communicate or liaise with the general medical services regarding his care.
Caught between two different medical services their view was that he was capable of managing his own condition. In reality this was not correct, his autism caused him to mismanage his diabetes, which sadly led to his early death.
Case 3: Failure to diagnose acute myocardial infarction
Medical negligence solicitor Stephanie Prior instructed to bring a claim against North Middlesex University Hospital NHS Trust on behalf of the dependents and the estate of her husband, the deceased. The claim was in respect of treatment received by the patient in July 2015.
A 42 year old male and father of two young children attended North Middlesex Hospital A&E department in the early hours of the morning. He reported a four day history of central chest pain radiating to the right side of his chest and right shoulder. IK had an ECG done which revealed sinus tachycardia and some abnormality. He was triaged and a further ECG was performed along with blood tests.
He was seen by a registrar who diagnosed him with exacerbation of asthma. He was discharged home with antibiotics, steroids and an inhaler. He continued to experience shortness of breath when he returned home. Despite not being able to sleep, he insisted on going into work later that morning. He collapsed at work that afternoon and upon arrival, the paramedics confirmed his death. A post mortem report stated the cause of death as
1a. Acute myocardial infarction,
1b. coronary artery atherosclerosis.
The Defendant admitted liability but disagreed on issues pertaining to quantum – specifically the deceased’s life expectancy and future earnings.
After negotiation, damages awarded: £250,000.
Case 4: Injury Caused During Treatment
Our medical negligence solicitors were instructed to pursue a claim against Chelsea & Westminster Hospital NHS Trust for injury caused during treatment received whilst our client was under their care in 2014.
Our client (DB) was diagnosed with a full rectal prolapse that required surgery in January 2015. The operation was performed in March and was successful in terms of the prolapse. However, DB’s left ureter was accidentally cut during this operation and this went unnoticed. No note of this was made in the operation notes and no mention of it was made post-operatively.
Two days after the operation DB had a high temperature and following investigations it was discovered that DB had a chest infection. In fact, DB was suffering from a urinary tract infection but fortunately, the antibiotics she was given were also effective against this. DB began to complain of abdominal pain four days after the surgery but doctors attributed this to her wounds and DB was discharged home when the infection seemed to subside.
DB attended Chelsea & Westminster Hospital A&E department with a 5 day history of urine incontinence on 12 April 2015. She was discharged in order to attend an outpatient appointment with her surgeon but returned to A&E three days later as she had increasing abdominal pain. The incontinence issue had resolved by this point. It was noted that she had a distended abdomen and the working diagnosis at the time was one of suprapubic peritonitis and sepsis. Blood tests revealed infection and a further CT scan showed there was an abscess in the pelvis that was subsequently drained. Further investigations followed as DB continued to have a high temperature and a nephrostomy was performed. DB underwent further procedures over the next few months, including the insertion and removal of a ureteric stent, the replacement of a mid-ureteric stent and a ureteric re-implantation in September 2015.
Following her discharge DB felt low in mood and attended her GP in January 2016. In February DB reported bladder problems. She developed recurrent urinary tract infections. DB was anxious as she was concerned that the stent, inserted in the ureteric re-implantation procedure in September 2015, had not yet been removed. The stent, which should have been removed within 6-8 weeks following the operation, was eventually removed in September 2016. However, in October 2016 it was noted that DB had already developed two hernias secondary to the re-implantation procedure. DB therefore had to undergo a further operation to correct these.
Expert evidence was obtained a Consultant Urologist and Consultant Colorectal Surgeon. Following the serving of a Letter of Claim, the Trust admitted liability and made an early Part 36 offer in the sum of £40,000, which was not accepted by the Claimant.
A joint settlement meeting followed where the claim was settled in the amount of £100,000. A letter of apology was also provided by the NHS Trust addressed to the Claimant.
Case 5: Failure to diagnose and treat Ogilvie’s syndrome
Our client suffered the consequences of a delayed diagnosis of Ogilvie’s syndrome following the birth of her daughter by caesarean section in September 2015.
Ogilvie’s syndrome is an acute intestinal pseudo-obstruction, the symptoms of which include: abdominal pain, nausea, vomiting, bloating and constipation. If left untreated it can lead to serious, life-threatening complications such as perforation of the colon, sepsis and tissue damage.
Following the birth of her daughter, our client experienced persisting abdominal pain and distension. Her condition deteriorated further over the course of the next week, and there was a failure both to perform an x-ray of her abdomen and to escalate her care to the surgical team. Five days after the birth of her daughter, a CT scan was performed which showed intramural gas in the caecum, however this was not reported to the senior doctor.
As a result of the 9 day delay in diagnosis and treatment, our client went on to suffer a perforation of her bowel which required surgical intervention (She was required to undergo a laparotomy and right hemicolectomy, along with an end ileostomy ten days following the birth of her daughter). If diagnosed promptly, Ogilvie’s syndrome can be treated conservatively with medication. Our client required a prolonged hospital stay which was extremely worrying and stressful for her and her family.
Following a Letter of Claim being sent to the Hospital Trust, limited admissions of liability were made. The hospital admitted that there was a failure to perform an x-ray at an earlier stage, and that a CT scan should also have been performed earlier. However, the hospital were of the view that earlier x-rays would not have led to the pseudo-obstruction being revealed and that our client would have required surgical intervention to treat her condition in any event.
Expert evidence was obtained from a Consultant Radiologist, a Consultant Obstetrician and Gynaecologist and a Professor of Colorectal Surgery. The experts’ reports were all supportive of our client’s case in respect of both breach of duty and causation. As a result of the denial of liability court proceedings were issued in April 2019. The hospital served a defence to the claim, however after a period of negotiation the case settled out of court for a five figure sum
Following the settlement of her case, our client commented:
“I am very satisfied with the services provided by Osbornes Law. Throughout the duration of my case (over 3 years) they were extremely responsive and kept me up to date with all the developments and provided explanations. When the Defendant came back with an offer they worked very hard to increase it. I am a very satisfied customer of Osbornes Law”
Nicholas Leahy, solicitor in our Clinical Negligence team led on this failure to diagnose case
For a free confidential discussion with our medical negligence solicitors call 020 7485 8811