Case: Negligently-performed laparoscopic cholecystectomy

Background

The Claimant was born on 26 November 1973 and was aged 32 years at the time of the alleged negligence. Prior to the admitted negligence the Claimant was employed as a supermarket worker.

The Claimant had no relevant past history. The Claimant was admitted to the Defendant hospital as an emergency patient with acute cholecystitis related to multiple gallstones as confirmed by ultrasound in December 2005. It was decided that the Claimant needed to undergo a laparoscopic cholecystectomy (removal of the gall bladder by keyhole surgery) to resolve her health problems. The Claimant had the operation performed on 11 April 2006.

Following the procedure the Claimant developed postoperative problems. These included worsening right upper quadrant pain associated with deranged liver function tests. The Claimant's condition was subsequently investigated by ERCP (endoscopic retrograde cholangiopancreatography) on 4 July 2006 and it was found that when the operation had been performed to remove the gall bladder, the clip had been misplaced so as to cause a bile duct injury. In particular the clip had been placed across the entire width of the upper end of the common bile duct.

The clip was eventually removed laparoscopically on 12 July 2006. Unfortunately, the Claimant's clinical condition continued to deteriorate and a repeat ERCP suggested a stricture with a small bile duct leak. The Claimant underwent a hepatico-jejunostomy using a Roux-en-Y loop on 20 July 2006 and was discharged on 28 July 2006.

The Claimant was readmitted as an emergency on 30 July 2006. The Claimant had developed spiking temperatures and right upper quadrant pain. Clinical investigation suggested septicemia and a CT scan on 1 August 2006 suggested segmental right and left portal vein and middle hepatic vein thrombosis and possible biloma (collection of bile) which was drained under CT guidance. The Claimant was discharged home on 11 August 2006.

The Claimant remained symptomatic.

The Claimant initially made a formal complaint to the hospital who contended that the procedure had been performed with all due care and skill by the operating surgeon and that the injury had come about as a result of the fact the Claimant had a particularly short cystic duct.

The Claimant was dissatisfied and instructed solicitors to investigate a claim. The Claimant's medical notes and records were obtained and independent evidence was commissioned from a consultant general surgeon. The Claimant also obtained a report from a consultant psychiatrist to determine if the alleged negligence of the Defendant had caused her to suffer a psychiatric injury.

The Claimant's position with regard to breach of duty and causation

The Claimant's expert evidence supported the argument that, when the laparoscopic cholecystectomy had been performed on 11 April 2006, the surgeon had been negligent in that the clip had been placed across the entire width of the upper end of the common bile duct thereby causing a bile duct injury and the need to undergo the remedial surgery as described above. The Claimant's expert considered that there was no medical merit in the Defendant's argument to the effect that the injury had occurred due to non-negligent means by virtue of the fact that the Claimant had a short cystic duct. The Claimant's expert also advised that her ongoing physical problems and health difficulties were directly related to the breach of duty of care.

The Claimant had a pre-existing psychiatric history of recurrent depression and anxiety. The Claimant had earlier suffered psychiatric problems from an unrelated gynaecological issue but these had resolved before the alleged negligence occurred. The Claimant's psychiatric expert opined that as a result of the alleged negligence the Claimant had suffered a recurrent depressive episode together with panic disorder. The Claimant's psychiatric expert opined that the alleged negligence did not make her more susceptible to such episodes in the future; and in terms of attribution, approximately 50% of the Claimant's psychiatric problems were due to the alleged negligence and 50% to her pre-existing vulnerability.

The Claimant's position with regard to attribution condition and prognosis

The Claimant obtained a Condition and Prognosis Report from a consultant general surgeon. The Claimant's expert identified that as a result of the negligence the Claimant suffered from several problems and, as a consequence, she would be handicapped on the labour market (Table 1).

In terms of prognosis the Claimant's expert advised that as a result of the alleged negligence the Claimant unfortunately also faced future health problems (Table 2).

The Claimant's psychiatric expert confirmed that the Claimant's prognosis was good and that her psychiatric symptomatology should have resolved within 3–6 months. The prognosis was given on the basis that the Claimant did not succumb to any of the future health difficulties identified by the general surgical expert. The Claimant's psychiatric expert opined that the alleged negligence did not make her more susceptible to episodes in the future.

The Defendant's position with regard to breach of duty and causation

A Letter of Claim was put to the Defendant and they were invited to admit liability. The Defendant requested an extension of time to serve their Letter of Response so that they could obtain their own expert evidence on the basis that they believed that the injury was a non-negligent consequence of the Claimant having a short cystic duct. The Defendant subsequently served a Letter of Response admitting that there had been a negligent placing of the clip leading to bile duct injury, but put the Claimant to strict proof with regard to causation and the extent of her losses.

Progress of litigation

The Claimant served a Letter of Claim on the basis of the Claimant's expert evidence. The Defendant served a Letter of Response admitting that there had been a negligent placing of the clip leading to bile duct injury, but put the Claimant to strict proof with regard to causation and the extent of her losses.

The Defendant put some expert arguments to the Claimant on the basis of their own expert evidence and in particular argued that the Claimant's chronic fatigue which was the one of the main causes of her disabilities did not arise as a result of the admitted negligence. These arguments were rebutted by the Claimant's expert.

The Defendant made a Part 36 Offer to settle the claim on a full and final basis for the sum of £125,000 plus costs.

The Claimant was advised by her solicitors, that in view of the nature of her injuries, and the future health risks she faced, she had a strong arguable case for an award of provisional damages. The Claimant, however, did not wish to settle on a provisional damages basis and sought settlement of the claim on a full and final basis. In light of the potential severity of some of the possible future health risks the Claimant faced, this strategy was canvassed with both Counsel and the Claimant's expert who endorsed the Claimant's approach to settlement.

The Defendant's Part 36 Offer was subsequently rejected and the Claimant put forward a counter-offer to settle her claim on a full and final basis for the net sum of £180,000 plus costs, following a conference with Counsel and her expert. In support of the offer the Claimant elected to disclose to the Defendant on a strictly without prejudice basis, her Condition and Prognosis evidence, Schedule of Special Damages and a Schedule of future medical costs prepared by the Claimant's expert.

While further negotiations ensued the Defendant was invited to make an interim payment which they duly did in the sum of £30,000.

The case subsequently settled on 11 December 2008 on the basis that CRU was nil; and upon the Defendant agreeing to pay the Claimant the gross sum of £145,000 plus costs on a full and final basis. The Trust also wrote a letter of apology to the Claimant.

Quantum

Although the case was settled on a global basis, General Damages were assessed in the region of £70,000 on the basis that not only did the Claimant face the risk of the Roux-Y failing, she also had hypertrophy of the left liver. The Claimant's claim for Special Damages related in the main to claims for past and future loss of earnings and past and future care.