Abstract
Background and disability
The Claimant claimed damages for clinical negligence arising out of the treatment she received at Salisbury District Hospital between 31 January and 4 February 2003.
The Claimant was admitted to hospital on 30 January 2003 for elective right breast reduction surgery. The claim related not to the performance of the surgery, but to the Defendant's monitoring of the Claimant thereafter. The Claimant developed an infection leading to necrotizing fasciitis and sustained multiple organ failure, injury to her right hip and thigh, and injury to both feet requiring amputation of her left big toe and right forefoot. Owing to ongoing problems with the right foot and in the light of medical advice, the Claimant contemplated undergoing a right below-knee amputation.
Allegations of negligence
The Claimant's case on breach of duty was that, although observations of the Claimant indicated persistently low blood pressure, a raised heart rate, a raised respiratory rate and a raised temperature, the Defendant did not conduct further investigations, such that opportunities to identify and treat the developing infection were missed.
The Claimant's case on causation was that, had adequate medical assessment taken place on 2 February 2003, appropriate treatment and referral to the intensive care team would have been instituted, such that the Claimant would have avoided multiple organ failure, the necrotizing process to the right thigh and the severe ischaemia of the feet leading to tissue loss and amputation.
The Defendant denied breach of duty and causation. The Defendant's case on breach of duty was that the medical staff were aware of the observations, but that the Claimant appeared to be clinically well, was mobilizing, eating and drinking and passing urine, and that there was no reason to treat her any differently until the afternoon of 3 February.
The Defendant's case on causation was that, even if further medical assessment had taken place on 2 February, the Claimant's treatment would have been the same.
The Claimant was advised by her treating orthopaedic surgeon to undergo a right below-knee amputation. She underwent revision surgery to her left foot in January 2007 with a view to preparing her for this surgery. As at March 2007, the intention was for the amputation to take place in the summer of 2007. However the Claimant was also advised by prosthetists, to whom her surgeon referred her, that the revision surgery she had just had might make it possible to continue as she was, with a prosthetic right forefoot. A Symes amputation (removal of the foot with retention of the heel) was also a possible option. The Claimant naturally wished to try every option before undergoing amputation, but in view of the history and taking into account the advice of her surgeon, further amputation of some kind was likely. The Claimant was advised that recovery from amputation surgery would be slow, such that assessment of her final condition was unlikely to be possible within six months at the least of such surgery, and more likely 12 months.
In view of this uncertainty it was extremely unlikely that medical experts would be able to assess the Claimant's condition and prognosis or her prosthetic needs for some time to come. To avoid delay, the Claimant proposed a split trial, with a view to concluding the issues of breach of duty and causation as early as possible and despite the Defendant's objections, the court agreed. A trial to decide liability and causation as preliminary issues was listed for March 2008.
Settlement
The Claimant made an early Part 36 Offer of £500,000 within her Letter of Claim. The offer was rejected and following service of proceedings, a defence entered denying liability. It was not until parties approached exchange of medical evidence that the Defendant indicated a willingness to consider settlement and made a Part 36 Offer of £300,000 subject to an 80:20 liability split, therefore offering the Claimant £240,000 gross of recoverable benefits.
The Claimant rejected the offer, not accepting either the Defendant's valuation or the 20% reduction for litigation risk and pressed for exchange of liability and causation reports. The Defendant then conceded breach of duty, stating that it conceded that appropriate treatment for the Claimant's septic shock and renal failure should have been commenced by 18:00 on 2 February 2003 but put the Claimant to proof in relation to causation. The Defendant delayed exchanging causation evidence but ultimately served a plastic surgery report concluding that had treatment commenced by 18:00 on 2 February 2003, it was more likely than not that the Claimant would not have suffered peripheral complications in her legs but that she would still have lost her breast.
Given the earlier concession on breach and the Defendant's plastic surgeon appearing to accept the Claimant's case on causation, the Claimant invited the Defendant to consent to judgment being entered in her favour with damages to be assessed. The Defendant declined indicating that it was still pursuing a limited causation defence. The Claimant therefore sought clarification of what that defence was by way of a Part 18 request for further information.
While awaiting a Part 18 response from the Defendant, without prejudice settlement negations continued. Despite the uncertainties in term of the Claimant's prognosis, the claim was valued as accurately as possible on the most likely scenario, i.e. that she would undergo a right below-knee amputation affording her improved mobility and some earning capacity but that she would face the considerable costs associated with her prosthetic requirements. The Claimant obtained and voluntarily disclosed a report from Dorset Orthopaedic in this respect. Through settlement negotiations the Claimant elicited increased offers of £350,000, £400,000 and £425,000 from the Defendant, ultimately accepting a settlement of £440,000 in November 2007 with a full admission of causation.
The claim was settled as a global figure without any particular breakdown. However an estimate for the most significant heads of damage is as follows:
£80,000 £120,000 £150,000 £70,000 £20,000