Abstract
Background to the Claimant's case and his disability
The Claimant attended A&E following a fall on uneven ground, complaining of a right ankle injury. Following an X-ray of the Claimant's ankle, a fracture above the ankle mortise was revealed and the Claimant was referred to the Orthopaedic Department.
The Claimant was examined by a Senior House Officer, who upon reviewing the X-rays, diagnosed an oblique fracture of the distal fibula. The Defendant claimed that the Senior House Officer discussed the matter with a Registrar, and a decision was made to admit the Claimant for open reduction and internal fixation of the fracture.
What does not appear to have been adequately considered at the time, was that as well as an oblique fracture of the distal fibula, there was also a second, but undisplaced, linear fracture extending proximally and obliquely from the anterior cortex. The presence of a tibia/fibula overlap of less than 10 mm also appears to have been overlooked.
The second, linear fracture created a fragment of bone that was, at the time of X-ray, undisplaced. The tibia/fibula overlap indicated that the anterior tibio-fibula ligament and the medial ligament had been torn, and the joint was unstable. The possibility of conservative treatment was not discussed with the Claimant.
Surgery was performed by a specialist registrar in orthopaedics. The specialist registrar did not take sufficient account of the second, undisplaced fracture line and resulting proximal fragment of bone, from the X-ray. The instability of the joint was not taken account of before surgery. A plate was used for internal fixation of the main fracture, however, this was applied on the anterior aspect of the fibula, whereas the usual position would be on the lateral or postero-lateral surface of the fibula. The specialist registrar did not take any steps to prevent displacement of the undisplaced proximal fragment of bone.
Following surgery, the Claimant's right ankle was placed in a plaster back-slab and he was admitted to a ward for postoperative care. The Claimant complained of numbness in the toes. The plaster was removed. The following day, the surgical wound was discharging slightly but was recorded as healing well. Two fracture blisters were noted towards the front of the foot. No swabs from the discharging wound were sent for microbiological testing to determine whether an infection was present. Over the next couple of days, the wound was re-dressed but no swabs were taken from the continually discharging wound. The Claimant was later discharged from hospital, once the wound had been re-dressed and a plaster back-slab had been applied.
Two weeks after being discharged, the Claimant was re-admitted to hospital with dehiscence of the wound, wound infection and considerable slough. The Claimant was treated with intravenous antibiotics for MRSA and pseudomonas infections and underwent repeated debridement of the wound, removal of the metal work from his ankle and a right free serratus muscle flap to his right leg. The Claimant also underwent skin harvesting from his chest, leaving an unsightly scar.
The Claimant did not work for almost three years after the accident and, due to his residual injury, will not be able to return to his previous profession as a large-scale heating and plumbing engineer. He, therefore, suffered a loss of earnings and has a significantly reduced future earnings capacity. A considerable amount of lay witness evidence was taken and served in support of the loss of earnings claim.
Allegations of negligence
Independent orthopaedic and microbiology evidence was obtained in support of the claim.
It was the Claimant's case that there was a failure to seek advice from a consultant orthopaedic surgeon, with regard to the appropriate treatment of the Claimant. There was a failure to consider conservative treatment and the presence of a second, undisplaced fracture was not considered sufficiently and taken account of from preoperative X-rays.
It was also alleged that there was a failure to send a wound swab from the postoperative wound, for microbiological testing to determine whether an infection was present, despite the wound oozing.
Accordingly, it was the Claimant's case on causation that had advice from a consultant been sought, conservative treatment may have been advised. On the balance of probabilities, had conservative treatment been followed, the fractures in the ankle would have united in a satisfactory position, allowing the Claimant to make a good recovery.
Alternatively, had surgery been performed satisfactorily, on the balance of probabilities, the fractures would also have united in a satisfactory position.
If swabs from the postoperative, discharging wound, had been sent for microbiological testing, on the balance of probabilities, the infections would have been identified. Appropriate antibiotics would have been prescribed along with aggressive surgical washout, and the Claimant would have made a good recovery.
The Defendant NHS trust denied liability and causation. The defence of the claim was conducted in such a manner that repeated interlocutary court applications were necessary, resulting in two costs orders being made in the Claimant's favour. Regrettably, an initial trial listing had to be vacated due to the Defendant's delay and repeated failures to comply with the directions timetable.
Settlement
The claim was relisted for trial in October 2009. Following exchange of witness statements and expert reports, the Defendant finally indicated some willingness to enter settlement negotiations. The Claimant made Part 36 offers of £300,000 and then £225,000. The Defendant's opening offer was £30,000. The claim settled for a gross sum of £176,563.75 plus costs following a solicitor round-table face-to-face meeting.
The Claim was funded throughout by the Legal Services Commission.