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Case Studies

Case Studies

Negligent Use of IVC Filter

Blackpool Teaching Hospitals NHS Foundation Trust

The Claimant, who had a history of hyper-coagulation syndrome to include PE’s and DVT’s, developed breast cancer and required a lumpectomy.

An IVC filter was advised and placed prior to the lumpectomy to protect the Claimant against injury from clots because her anticoagulants had to be stopped for the lumpectomy to proceed. A permanent rather than a retrievable filter was selected.

Subsequently the IVC filter became blocked and as a result the Claimant suffered pain and swelling in her abdomen, back and legs. Her walking distance and mobility generally are restricted as a result. She requires assistance with activities of daily living and she has been unable to return to her job.

The Claimant's case was that a retrievable filter should have been placed and that this should have been removed after the lumpectomy which would have avoided the filter having become blocked.

The Defendant admitted breach of duty and causation of but not the extent of injury. In particular, the Defendant alleged that the Claimant had certain pre-existing unconnected health problems which were causing or contributing to her ongoing difficulties.

Medical expert evidence in the case revealed that the ‘struts’ of the filter (which is shaped like an umbrella) had moved with the passage of time so that one strut had penetrated a vertebra in the Claimant’s spine and others were lying close to organs and blood vessels.

When this came to light, the Claimant was given permission by the court to amend her Particulars of Claim to plead provisional damages. This meant that if one or other of the filter struts moved and caused further damage, the Claimant would be able to return to court for a further payment of damages even after her case had settled.

The case proceeded toward trial and the Defendant made various offers which were not attractive.

Recently, as a result of the Lord Chancellor’s decision to reduce the discount rate for calculation of future losses, the Claimant’s Schedule of Loss was recalculated and the value of her claim increased.

The Defendants then made a further offer and after a period of negotiation the claim settled for a substantial 6 figure sum, 4 months before trial.

 

Delay in diagnosing brain tumour

GP's and Blackpool Teaching Hospitals NHS Foundation Trust

This was a complex clinical negligence claim in which the Claimant sought damages from her former GPs and from the Hospital in relation to alleged delays in referring her to hospital with signs and symptoms which were eventually diagnosed as a brain tumour.

The Claimant’s allegations spanned an 8 month period of time in between her first appointment with the GP and eventually being diagnosed. The tumour was then removed, however the Claimant was left with on-going difficulties.

The Claimant’s case was that the Defendants’ delays materially contributed to certain of those on-going difficulties namely poor balance, impaired coordination, memory, concentration and mood as well as general fatigue.

The Claimant accepted that certain other of her on-going difficulties would have occurred in any event (because of the position of the tumour and the fact that she was always going to need surgery to remove it) namely impairments of vision, swallow and speech, neck ache and weakness.

The Defendants denied liability.

The Defendants also raised a limitation defence which said that the court proceedings were issued almost four years after the Claimant’s date of knowledge. The law allows 3 years from date of injury or date of knowledge to issue proceedings and that the claim was therefore out of date.

The Claimant contended that her date of knowledge was the date of receipt of certain medical evidence in the case and if this was not accepted by the court she would have sought the exercise of discretion under Section 33 of the Limitation Act 1980 which allows the court to disapply the limitation period in certain justified circumstances.

The Claimant would rely upon the extended recovery and rehabilitation she had following her surgery and the complexities of her case, particularly in relation to causation, in support of her request for the exercise of discretion.

The parties exchanged Witness Statements and were working through the various steps necessary to prepare the case for trial when the Defendants made an unexpected offer.

A period of negotiation followed and the claim settled for a substantial 6 figure sum. The settlement figure reflected the risk that both parties faced in taking the matter to trial and, in relation to the Claimant, the difficulties that she would face in quantifying those aspects of her ongoing injury which were allegedly caused by the Defendants’ negligence and the impact they were having on her daily life and those which she would have had in any event.

 

 

Head Injury

Blackpool, Fylde & Wyre Hospitals NHS Trust

This was an extremely complex case on behalf of a young man who suffered multiple injuries, including serious head injury, in a road traffic accident. He was admitted firstly to hospital and then to a rehabilitation centre where it was alleged that, due to poor physiotherapy and management of hip and knee contractures, he achieved a far poorer outcome than would have been the case and that in particular he failed to achieve independence of mobility and care.

The claim was conducted on a split trial basis (where the issue of ‘fault’ is tried before the claim is quantified) and in the run up to exchange of evidence the Defendant made an offer of 75% responsibility for the damage caused to our client.

The offer was considered to be a generous one and the approval of the Court was sought as, due to his head injury, our client was considered to be incapable of managing his own affairs. This is standard procedure where clients lack ‘capacity’.

Thereafter we worked towards trial on quantum (the value or quantification of the claim) with expert evidence being obtained from care, aids and equipment, physiotherapy and accommodation experts.

At a round table meeting, settlement in the sum of one million pounds was provisionally achieved, with the Defendant agreeing to consider the sum being applied to a lump sum and periodical payments. Negotiations after the meeting led to an apportionment of £493,000.00 for the lump sum and £23,500.00 per annum by way of periodical payments which again had to be approved by the court.

Periodical payments are a very useful tool in clinical negligence claims. In higher value claims, the award made to the Claimant for the care he or she will need in the future (and sometimes other future losses as well) are divided down and paid yearly to the Claimant (periodical payments) on a tax free basis for the rest of their life. This means that their care needs can always be provided for, however long they live.

 

GP failure to diagnose meningitis

This was an extremely complex and challenging case.

The circumstances were that at 18 months old our client contracted meningitis. As a result of a delay in referral to hospital by his GP he suffered hearing loss, a significant speech and language disorder and a range of cognitive impairments most significantly causing memory problems.

The injuries set out above are not typical of a delayed diagnosis of meningococcal septicaemia and this made the investigation of the claim very difficult and time consuming.

There were several occasions upon which we received unsupportive medical expert evidence and it looked as though we might have to discontinue the investigations but we persevered and were greatly assisted by expert opinion from specialists in general practice, paediatrics, paediatric neurology, paediatric infectious diseases, speech and language therapy and neuropsychology.

In addition to the fact that the pattern of injuries seen in the Claimant were not typical of those usually seen after meningococcal septicaemia, we also had to build our case in relation to how and when the various aspects of damage developed, so as to be able to prove which of those aspects of damage would have been avoided with earlier diagnosis.

Eventually however, we reached a stage by which we were in a position to present a sustainable claim to the Defendant.

Proceedings were issued and served.

At a relatively early stage the GP’s Defendant admitted that he should have referred our client to hospital immediately and made an offer in the sum of £400,000.00. At that stage we did not have any evidence upon which to value the claim but rejected the Defendant’s offer nonetheless because it was felt to be too low.

The claim was quantified with the help of experts in care, occupational therapy aids and equipment and assistive technology and prepared for a trial on quantum (the value of the case). A Joint Settlement Meeting took place several weeks before trial but the negotiation was difficult and as a result the parties failed to come to terms.

However, two days before the pre-trial review and just over two weeks before the start of the trial the Defendant made an offer in the sum of £1.7 million.

Our realistic valuation was £1.5 million and in the circumstances it was considered that an offer of £1.7 million should be accepted.

The settlement was approved by the Court because our client’s cognitive impairments meant that he did not have the ‘capacity’ to manage either the litigation or his damages.

 

Negligent Management of Crohn's Disease

Blackpool, Fylde & Wyre Hospitals NHS Trust

This claim arose out of a delay in performance of a hemi-colectomy (removal of a segment of bowel) in a man with Crohn’s Disease, such that his bowel perforated, he developed sepsis and subsequently a number of different fistulae (connections between the bowel and other organs or tissues) which proved very difficult to treat and which were unlikely to improve.

Supportive expert evidence was obtained from a colorectal surgeon and a gastroenterologist and, before exchange of expert evidence took place, a series of admissions were made by the Defendant so that ultimately the quantification of the claim was the only outstanding issue. However, this involved teasing out those aspects of our client’s condition which were caused by the admitted delay, as opposed to those aspects which were caused by his Crohn’s Disease, which caused the need for surgery in the first place.

The claim included a “double care claim” on the basis that prior to the admitted negligence, the Claimant was the principal carer for his wife who had COPD and was dependent upon a wheelchair and oxygen and that as a result of the negligence, the burden of both his and her care had been passed to our client’s children.

There were detailed negotiations as to quantification over several months, however the claim eventually settled at a round table meeting for the sum of £505K.

 

Bowel perforation arising from caesarean section

Blackpool Teaching Hospitals NHS Foundation Trust

This was a case brought on behalf of a young woman who was aged 22 years old at the date of injury.

Our client had a very difficult delivery of her first born child. There were serious issues concerning labour and delivery which was by way of caesarean section and she developed pseudo-obstruction of the bowel (Ogilvie’s Syndrome). Unfortunately, this was not recognised at the time, with the result that our client’s bowel perforated in two places and she required life-saving surgery, which left her with a permanent mucous fistula and ileostomy.

Whilst a recognised complication of a difficult caesarean section, Ogilvie’s Syndrome is very rare and in fact it was not until expert evidence was obtained, that our client discovered what had actually happened to her. Prior to this she had thought that the bowel perforations were caused by surgical injury during the Caesarean section.

Court Proceedings were issued and served, with the Defendant denying liability throughout.

There were no offers of settlement until 3 months before trial. The offer was too low and upon advice our client rejected it.

There was then a round table meeting 2 weeks before trial. During the negotiations at the meeting, the Defendant increased its original offer by more than 550% and the claim settled for £450K.

 

Cerebral Palsy Claim Against a Liverpool Hospital

This was a cerebral palsy claim brought on behalf of a young man who was aged 16 years at the date of final settlement.

Our client had a mild dyskinetic cerebral palsy which it was alleged had been caused by a 7-minute delay in delivery. He was fully and independently mobile and was largely self-caring at the time of settlement.

Proceedings were issued and served and the Defendant denied liability.

A split trial was ordered so that the issue of fault could be determined quickly and before the claim was fully quantified. This is often the way that cerebral palsy claims proceed.

The case was prepared for a trial on liability however this settled at a round table meeting prior to trial when the Defendant agreed to pay a percentage liability settlement at 85%. The Claimant could have proceeded to trial but we considered that the risk of losing justified accepting the reduced liability settlement.

The case was then quantified and settled on the basis of a lump sum of £1.9M and then yearly payments for life (periodical payments) of between £45,000.00 and £115,000.00 per year, increasing with age. If the Claimant lives to the age expected he will recover approximately £8.8m.

It was very important for the Claimant’s parents to ensure that he was fully provided for and protected later in life when they were not around to care for him. We were therefore instructed and encouraged by the parents to agree a relatively low periodical payment for the first few years in exchange for higher periodical payments in later life.

The settlement was approved by the Court (since our client was a minor at settlement but was not expected to be able to manage his affairs or such a large amount of damages once he reached 18) as being a very good result for the Claimant.

 

Failure to diagnose spinal infection

Countess of Cheshire Hospitals NHS Foundation Trust

We inherited this claim from a non-specialist solicitor. It had been investigated as an alleged failure by the Claimant’s GP to refer him to hospital in relation to vertebral osteomyelitis, which eventually caused him to need radical spinal surgery and which left him with severe mobility problems and impotence. When unsupportive medical expert evidence was obtained, the previous solicitors referred the claim to us.

After investigating further with a GP expert, we took the view that this should be a claim against the hospital and instructed a general surgeon to consider the potential negligent failure to spot the infection in blood test results, which our client had whilst an inpatient for an unrelated condition. This evidence came back positive.

In addition and for the sake of completeness, we instructed an expert radiologist to review all the radiology in the case and he spotted the early appearances of the spinal infection on an abdominal CT and plain x-ray. Upon his advice we also alleged a failure on the part of the radiologist to draw this to the attention of the general surgeon or neurosurgeon.

The claim was issued at Court and proceedings served. Liability was denied and the matter proceeded and was fully prepared for trial.

An offer of settlement was made but rejected, however the case eventually settled at a round table meeting 6 months before trial for £400,000.00 which was more that had been anticipated.

 

Retinopathy of prematurity

Manchester Strategic Health Authority

In this case we represented a girl who was 14 years old at settlement. She was a premature twin who has cerebral palsy, learning difficulties and retinopathy of prematurity, a serious eye condition which can affect premature babies and render them blind, as was the case here. Some records and evidence had been obtained by a non-specialist solicitor who had passed the case to us when the Defendant denied liability following service of a Letter of Claim.

We revisited liability and obtained some missing records and were able to obtain supportive evidence.

Proceedings were issued and served and the claim was denied in full. The key allegation was that although the appropriate treatment was provided, this was not undertaken as quickly as it should have been in all the circumstances of the case and that this caused our clients visual impairment.

During the life of the case an offer was made but this was too low and we advised our client to reject and continue.

The matter was fixed for a four day trial, however the Defendants made further offers in the run up to trial and at a ‘round table meeting’ a couple of weeks before trial. Again these were considered to be insufficient and we advised our client to proceed.

The claim eventually settled in the sum of £575,000.00 two weeks before trial. Due to our client being a minor at the time of settlement, the award of damages had to be approved by the court. This is standard practice and ensures that the court oversees all settlements agreed for children, so that they are properly protected against claims being undervalued.

 

Delayed diagnosis of cancer  

Blackpool Teaching Hospitals NHS Foundation Trust

This claim was brought on behalf of a male with a delayed diagnosis of cancer of the rectum.

The case involved allegations that there were several missed opportunities to diagnose the disease.

Our client required radical surgery, which would not have been needed with earlier diagnosis but had made a good recovery from surgery and was cancer free by the time of settlement.

An interesting feature of the case was that in relation to the earliest allegations of negligence, our colorectal evidence was that the tumour would have been of such a size and in such a location that it could have been removed by trans-anal local excision, which would have avoided the radical resection which our client had to undergo.

There are only a small number of specialist centres that offer this procedure but our evidence was that our client should have been offered a referral and his evidence was that had it been offered, he would have accepted

Although the claim was defended initially, shortly after exchange of witness statements the Defendant made an offer of settlement and although this was rejected it triggered negotiations and the claim settled at £160,000.00. This might appear to be a low award bearing in mind the circumstances of the case, however our client had not worked for several years before the delayed diagnosis and therefore there was no claim for loss of earnings.

 

Bladder and bowel damage during radical laparoscopic prostatectomy

Mid Cheshire Hospitals NHS Foundation Trust

This was a complex case arising out of bladder and bowel damage caused to a middle aged man during a radical laparoscopic prostatectomy. We alleged that it was negligent to damage the bladder and bowel and that the subsequent repair was also carried out to a poor standard.

Supportive expert evidence was obtained from a urological surgeon and a colorectal surgeon.

This case was defended on the basis that the particular surgeon who performed that operation was a “high volume surgeon” (in other words a specialist) for this particular procedure which was rare at the time, and that the damage caused was not indicative of negligence and that the method of repair was accepted and recognized in “high volume" specialist centres.

We then had to obtain a second urological opinion from a “high volume surgeon” and it transpired that this was a very small group of surgeons at that stage because it was such a new and specialist procedure.

In any event the second opinion obtained was very supportive and raised additional criticisms of the treating surgeon. Fairly early in the proceedings the Defendant made a very low offer and indicated that they wished to explore settlement.

We served a full schedule of our client’s losses with supporting reports. The Defendant responded with a Counter Schedule (which is standard practice). The parties then attended a “round table meeting” to discuss settlement which was unsuccessful. However a telephone negotiation between the parties’ solicitors followed and the case settled in the sum of £325,000.00.