Abstract
Facts
This is a claim for damages arising from negligent treatment provided to TB, the late husband of the Claimant, by the Defendant Salford Royal NHS Foundation Trust.
The Deceased was born on 22 December 1949. He was 54 years old at the date of the negligent act on 16 April 2003.
The Deceased was a pilot. After an episode of back pain on 22 March 2003, he was referred by his chiropractor to a neurologist. An urgent admission to the Defendant hospital was arranged on 31 March 2003. The Deceased was diagnosed as suffering a protrusion of the disc in the mid-thoracic region at T8/9. Spinal surgery to relieve the protrusion was recommended.
On 15 April 2003, the Deceased was admitted to the Defendant's hospital for surgery. Prior to surgery an ECG showed non-specific abnormalities. Surgery was undertaken on 16 April 2003. On the first postoperative day he was seen by a neurosurgical House Officer who identified that he had low oxygen saturations and recognized pulmonary embolism as a potential cause. He planned to undertake an ECG, perform blood tests and consult with a more senior colleague regarding anticoagulant, and to determine whether a spiral CT scan of the chest should be undertaken.
The ECG was performed and it was abnormal. This was admitted by the Defendant. The Senior House Officer spoke to a more senior colleague who concluded that the Deceased was unlikely to be suffering from a pulmonary embolism in the first postoperative day. He raised the possibility of atelectasis or chest infection and the plan was amended for a physiotherapist to attend and prophylactic administration of antibiotics. No investigations were undertaken to rule out pulmonary embolism as the cause.
On 18 and 19 April, the Deceased was administered oxygen to aid his breathing. On 20 April 2003 at 14:00, the Deceased became breathless and began to shake complaining of severe chest pain. He suffered a cardiac arrest caused by a pulmonary embolism and died.
Allegations
It was the Claimant's case that the presence of a pulmonary embolism should have been excluded when it was raised by the Senior House Officer on 17 April 2003. Exclusion would have been by investigation by way of V/Q scan or spiral CT scan. Had appropriate scanning been undertaken, a vena cava filter would have been inserted on 18 April 2003 and appropriate anticoagulation administered thereafter and the Deceased would have survived the pulmonary embolism.
It was the Defendant's case that the neurosurgical registrar, whom Senior House Officer Dr Lau consulted, reasonably concluded that the Deceased was unlikely to be suffering from pulmonary embolism because it was the first postoperative day and denied that the Deceased's condition mandated any further investigation of treatment for the suspected pulmonary embolism as alleged by the Claimant. It was specifically denied that it was negligent to fail to perform a V/Q or CT scan. The Defence relied upon research in the New England Journal of Medicine YR 1998 VL 338 Number 7 which was disclosed to the Claimant, which shows that in a 400-patient trial, 200 people who were given vena cava filters did not show any reduction in mortality.
Proceedings
Proceedings were commenced in this case on 11 April 2006 and a Defence was filed denying liability in January 2007. Expert evidence was exchanged on 28 January 2008 and, by letter of the same date, the Defendants served a letter admitting breach of duty in the failure to diagnose a pulmonary embolism by 18 April 2003 at the latest. It was accepted that treatment should have been instituted upon such diagnosis and, if it had been, the Deceased's death on 20 April 2003 would have been avoided. No admissions were made as to the extent of the Deceased's physical recovery following his spinal surgery had he not died.
The Claimant's expert advised that Mr Briffa would have achieved his preoperative level of physical function, any pre- or postoperative weakness would have been resolved and sensory disturbance would have been relieved within six months at the latest. He would have been able to return to work as a commercial airline pilot by six months at the latest and there would not have been any physical or function restriction preventing his return to work as a pilot. The Deceased would have enjoyed fine motor skills, satisfactory function of all four limbs, good range of shoulder, hip, leg and ankle joints, and a normal sense of coordination and gait.
It was further advised by the Claimant's neurological expert that the Deceased would have needed a further operation at 5–10 years postsurgery in 2003, due to symptoms of a degenerative spinal and canal stenosis.
The Defendant's evidence was that, post-surgery, the Deceased would have returned to his preoperative neurological condition and the postoperative leg weakness would have resolved within three to six months. Thus, within a timescale of six months, he would have been able to return to work. However, the Defendant's expert expressed the view, based on a review of the available radiology, that the Deceased would have suffered extensive, multilevel degenerative disc disease in his spine which would have prevented him from working within five years of the surgery in April 2003. Furthermore, he would have required further surgery at some point during those five years necessitating a period away from work of about 6–12 weeks.
From the point of view of the recovery from the pulmonary embolism, the Defendant's expert highlighted that the Deceased would have been treated with warfarin for a minimum of three months, and in the presence of postoperative weakness of the leg, warfarin would have continued for ‘at least six months.’
The Claimants undertook investigations with the Civil Aviation Authority's Medical Examiner, who indicated that the Deceased would, most likely, have returned to Class 1 fitness with an Operational Mutlicrew Limitation (OML), preventing the holder from operating an aircraft alone. However, as the Deceased rarely flew alone in any event, it is not likely that the OML would have precluded his return to work.
By letter, again, of 28 January 2008, the Defendant made an offer to settle the Claimant's claim in relation to her husband's death in the sum of £250,000 net after deductions, together with payment of the Claimant's reasonable costs. This was rejected by the Claimant.
The Defendant's made a further offer of £310,000 on 28 April 2008. This was accepted by the Claimant.