SUMMER 2004 Medical Negligence Review A review of some of our successful cases in 2003 In brief: 1 Cardiology 7 Nursing Care 2 Cerebral Palsy 8 Obstetrics 3 Fetal Medicine 9 Paediatric Surgery 4 Hospital Infection 10 Psychiatry 5 Keyhole Surgery 11 Who we are 6 Neurosurgery
MEDICAL NEGLIGENCE REVIEW 2004 1 Cardiology P v Worcester & District Health Authority M, born in February 1978, suffered from Alstrom Syndrome which caused blindness, diabetes and excessive weight gain. In October 1991 M was a pupil at the RNIB College in Worcester. He attended a hospital appointment with a cardiologist in November 1992 but no treatment or follow-up was given. In November 1994 M collapsed with a heart condition and was admitted as an emergency to the Torbay Hospital. It was established that he suffered from cardiomyopathy. M again collapsed with heart failure in July 1997 but notwithstanding intensive treatment including a heart transplant at the Papworth Hospital M died on 11 May 2003. Other solicitors were instructed to investigate and pursue a claim for M. In the summer of 2001 those solicitors advised M that he would not be able to succeed with his claim notwithstanding that the Defendant Health Authority had admitted breach of duty. In August 2001, the case was referred to Paul McNeil who undertook further investigations to seek to establish that the failure of the cardiologist to follow-up M in November 1992 resulted in a failure to prescribe ACE inhibitors which might have prevented the cardiac failure. We applied to adjourn the trial and in subsequent proceedings were able to successfully argue the M s heart condition had been made worse by the failure of the hospital in 1992. Sadly, the settlement came after M s death and the matter was concluded in the sum of 20,000 in June 2003. 2 Cerebral Palsy D v Oxford Radcliffe Hospitals NHS Trust Oliver was born at the Horton General Hospital on 9 February 1995. His mother had been admitted to hospital the previous day expecting twins. She was then 34 weeks pregnant. At about 04:48, William (twin 1) was delivered easily. Oliver was noted to be in a compound presentation of both hand and vertex. The obstetrician, having twice unsuccessfully tried ventouse delivery with a silastic cup, then proceeded to emergency caesarean section. Oliver was eventually delivered by caesarean section at 0530. He has dystonic athetoid cerebral palsy, caused by acute fetal asphyxia. The claim alleged that the doctors should have delivered Oliver and his brother by caesarean section immediately, in the light of the persistent (and deteriorating) severe bradycardia on the CTG at 03:00 on 9 February. This would have taken about 30 minutes to achieve and both twins should therefore have been delivered by 0355. It is thought that although Oliver suffered very severe physical injuries he is of normal intelligence and it is hoped that with special schooling he will be able to make significant achievements notwithstanding his undoubted communication difficulties. After negotiations between the parties the case eventually settled in the sum of 3.4 million, the settlement being approved by Mrs Justice Cox. Paul McNeil conducted the case with the assistance of Public Funding (formerly known as Legal Aid). 3 Fetal Medicine P v East Gloucestershire NHS Trust Mr & Mrs P instructed Paul McNeil in connection with the birth of their son Gareth on 26 April 1999. Mrs P became pregnant with Gareth in July 1998 and attended a routine anomaly ultra sound scan in November 1998. The scan was reported as normal and the pregnancy continued until Gareth s birth on 26 April 1999. Immediately after birth the paediatricians noted that Gareth had spina bifida which had not been diagnosed ante natally. Gareth was immediately transferred to the Frenchay Hospital where surgery for the closure of the myelomeningocele was carried out on 27 April 1999. Gareth has continued to have significant problems including paraplegia, incontinence of urine and faeces and hydrocephalus. We alleged the midwives and the ultra sonographers had been negligent failing to identify Gareth s spina bifida prior to his birth particularly at the ultrasound scan in November 1998. Proceedings were issued in April 2002. Shortly after this the Defendants admitted negligence and the matter proceeded on the basis of quantum of damages only. After protracted negotiations the matter settled in December 2003 in the sum of 750,000.
FIELD FISHER WATERHOUSE The case was particularly difficult to quantify because Gareth was so young and his prognosis was difficult to ascertain. W v Guy s & St Thomas Hospitals NHS Trust Paul McNeil acted for Mr & Mrs W in connection with a claim for medical negligence arising out of the treatment Mrs W received at Hospital during the pregnancy ending with the birth of AW on 5 July 1999. A suffered from VACTRL syndrome which meant that she had abnormalities of the upper limbs, and genito-urinary function. It was alleged that with proper obstetric care Mrs W s pregnancy would have been terminated and A would not have been born. The issue of liability was agreed between the parties. The W s agreed to accept 90% of the full value of the claim. The case settled in the sum of 360,000 in July 2003 to include compensation for pain and suffering to the parents, extra care, the cost of treatment and Mrs W s loss of earnings. RA contacted Paul McNeil in November 1999 and with the assistance of Legal Aid the medical records were discovered (over 5,000 pages) and the appropriate experts reports obtained. Proceedings were issued in August 2002 with a trial date fixed for January 2004. The Defence denied liability on the grounds that RA contracted MDR-TB from direct personal contact with an infected patient, that it was reasonable not to include RA as a contact of the infection and that it was reasonable not to test RA for MDR-TB until the summer of 1999. Moreover, the Defendants alleged that the Claimant would have developed necrosis of her left hip in any event. As the claim proceeded towards trial the Defendants initially made an offer to settle and then admitted liability. Finally the case was settled in the sum of 50,000 on 8 December 2003. Although no figure was agreed for general damages approximately 30,000 was allowed for this. 5 Keyhole Surgery 4 Hospital Infection RA v Guy s & St Thomas Hospital NHS Trust RA suffered from sickle cell anaemia which required frequent admissions to hospital. One such admission was to St Thomas Hospital in January 1996 and RA remained an inpatient for several months. During that period the hospital suffered an outbreak of Multi-Drug Resistant Tuberculosis MDR-TB. Three patients had contracted MDR-TB who were in hospital in the same ward and at the same time. In January 1998 RA began to complain of symptoms of tuberculosis and she was seen by the chest physician who offered some conventional treatment which failed to cure her tuberculosis. During the summer of 1998 RA began to complain of excruciating pain in her left hip which she thought different from her sickle cell pain. At the same time she continued to have signs and symptoms of TB but it was not until the summer of 1999 that appropriate tests were undertaken to establish whether this was multi-drug resistant. In August 1999 RA was finally diagnosed and appropriate treatment was commenced. Unfortunately the MDR-TB had infected her left hip which was removed on 1 October 1999. RA was eventually discharged from hospital on 3 February 2000 but it was not until 15 October 2002 that a left hip replacement was given. A v Lewisham Hospital NHS Trust A suffered from gallstones. On 6 July, A underwent a laparoscopic cholecystectomy. The operation appeared to proceed without complication. Following the procedure, A suffered from abdominal pain. Her haemoglobin levels fell, and an ultrasound scan carried out the next day confirmed that she was bleeding internally. An emergency laparotomy was performed, where it was discovered that the cystic artery was only partly clipped by the clip occluding the cystic duct. During the operation, the artery was freed and tied, the operation note being titled bleeding cystic artery. Following the laparotomy, A continued to suffer severe abdominal pain requiring substantial pain relief and also developed severe constipation as a result of the high level of pain killing drugs needed. This led to a further operation under general anaesthetic for manual evacuation of A s bowels. As a result of the laparotomy, A continues to suffer from on-going abdominal pain and the scar is particularly sensitive. She also suffers from Irritable Bowel Syndrome and became clinically depressed. We alleged that the failure to clip the cystic artery was negligent, and that if the artery had been properly
MEDICAL NEGLIGENCE REVIEW 2004 occluded at the laparoscopy, A would not have undergone the laparotomy, nor suffered the on-going abdominal pain or sensitivity in her scar. Causation in relation to the IBS was more difficult as there were entries in A s medical records suggesting that she had suffered abdominal symptoms in the past, although no diagnosis of IBS had been communicated to her. It is accepted that IBS is affected by life events and therefore, we argued that had A s treatment proceeded as originally planned, she would not have suffered as severely. The claim was issued in July 2002. The trial was listed for December 2003. Following the experts meeting, Janine Collier negotiated a settlement in the sum of 24,000, plus costs. 6 Neurosurgery RA v Brookes RA suffered from established left Meniere s Disease which caused him to suffer dizziness, headaches and vomiting to the extent that it affected his family, social and working life. He attended the Defendant who was a Consultant ENT Surgeon and who offered a left vestibular nerve section as a private patient at the London Clinic. RA was told that the prospects of success of the operation were high. Access to the vestibular nerve is gained via the ear and exposes the patient to the risk of leakage of cerebral spinal fluid (CSF). This in turn causes a risk of viral meningitis with brain damage or death. The surgeon failed to employ a lumbar drain and moreover failed to attend to treat the patient appropriately when there were suspicions of a CSF leakage. Our experts contended that prompt treatment including drainage and administration of antibiotics would have prevented the serious consequences of the meningitis infection. Sadly, notwithstanding there had been a CSF leak noted in the records for more than 60 hours the Claimant did not receive proper treatment and at 00:20 hours on 9 December RA was found to be cold and clammy and unresponsive. An emergency team resuscitated him but he was left paraplegic with double vision, right-sided paralysis and deafness in his right ear. The effects of the injuries were to prevent him working as a Managing Director of an aerospace engineering company and looking after his family. The case was investigated by Paul McNeil. Initial expert evidence was negative. Nevertheless the claim was pursued with new experts and proceedings were issued and served on the Defendants in January 2002. Negligence, causation and quantum of damages were denied in the Defence. On 25 February 2003 the Defendant admitted liability, although quantum remained in dispute. The action was fixed for trial on 23 June and settled in the sum of 3.9 million four days before the trial. The case was conducted on a no win no fee basis. 7 Nursing Care M v Homerton University Hospitals NHS Trust Mrs M at the age of 83 led an independent life prior to her admission at the Homerton Hospital, in July 2001. It was suspected that she had suffered a minor stroke. Various investigations were carried out and Mrs M s condition stabilised. She was diagnosed with an asymptomatic aortic aneurysm and it was hoped that Mrs M could be discharged home within a few days. Mrs M s son visited his mother on 21 July 2001. He noted that she did not look herself and she was visibly distressed. Completely out of character, she began shouting and lashing out at him. He was extremely surprised because the day before his mother had been absolutely fine. At about this time there was a commotion as a male nurse was pinned to the floor by a male patient. Eventually security guards arrived on the ward and took the male patient away. It transpired that the male patient had the previous night attempted to get into Mrs M s bed and indecently assaulted her. Mrs M sustained bruising to her right forearm, back pain and suffered psychologically as a result of the assault. It was necessary to issue a court application to obtain release of the perpetrator s records. A Nursing Expert report was obtained which identified negligence in that the nurses had failed to take heed of the fact that the perpetrator had been acting inappropriately for several days prior to 20 July 2001. He had been seen leaning over Mrs M s bed, he had been violent and
FIELD FISHER WATERHOUSE abusive and had distressed other patients. The staff failed to take appropriate steps to protect Mrs M. A Claim Form was issued in December 2002 and proceedings served, together with a psychiatric report and the claim was defended. In May 2003 the Defendant put forward an offer of 10,000. Samantha Critchley, who acted for M, negotiated a settlement in the sum of 25,000. 8 Obstetrics P v West Middlesex University Hospitals NHS Trust Samantha Critchley acted for SP in this clinical negligence claim for Erbs Palsy. It was publicly funded. The case concerned SP born at West Middlesex Hospital on 3 November 1993. Induction of labour was preformed at 41 weeks on 1 November. Labour began at about 10.00 hours on 2 November. After a prolonged labour by 03.30 hours, on 3 November Mrs P developed a strong urge to push. By 04.35 hours the cervix was fully dilated and at 04.45 hours active pushing commenced but with little advance. At the birth the obstetrician first rotated the head using a ventouse and then used forceps. He stated that the mother was not very co-operative when the head was delivered and that he delivered the shoulders with gentle traction but the delivery was obviously sub-optimal because of Mrs P s pain and the fact that she was moving on the bed. SP was subsequently diagnosed as suffering from severe Erb s Palsy of the left arm. It was confirmed by one Orthopaedic expert that the magnitude of the force necessary to cause this injury to be about 20-40kg. The Claimant s case was that excessive traction had caused the injury. Our expert Obstetrician agreed that the doctor had failed to recognise shoulder dystocia and that excessive traction had led to the injury. Proceedings were served in June 2002 and the trial was listed for July 2003. Expert evidence was exchanged and a meeting took place between the Obstetric Experts. Although the Defendant's expert was unimpressive, nonetheless the Defendants continued to strenuously defend the claim. Eventually an offer in the sum of 250,000 was made approximately a month before trial. The matter ultimately settled for 320,000 which was approved by the court. G v Barking, Havering and Redbridge Hospitals NHS Trust G s labour began on 26 December 1998. Labour was protracted and augmented by Syntocinon. During the pushing stage the midwife noted that the perineum was tearing and she performed a left lateral episiotomy. G s daughter was born shortly afterwards. G sustained a second-degree tear in addition to the episiotomy during the delivery. Following the delivery, the midwife sutured the episiotomy wound and the perineal tear. It was the Claimant s case that the midwife was unsure of how best to repair the episiotomy and asked her supervisor for advice. The Sister undid some of the sutures, before advising her how to proceed. Further the midwife asked the Registrar if he would take over, but he declined, telling her no, you do it. The procedure took 1½ hours to complete. The Defendants denied that the midwife was unable to tackle the suturing. G was discharged from Hospital on 28 December and was seen by the community midwife who removed two of the sutures which she said had been poorly inserted. On 15 January 1999, G saw her GP and was referred to the Hospital and advised there was quite a large gaping hole. On 23 February, G re-attended the Hospital. The Consultant Obstetrician advised G to undergo a refashioning of her introitus. She told G that it was very tatty down there. G opted to see a Consultant Obstetrician on a private basis (having lost confidence in the NHS). On 15 May 1999, C underwent surgery to have her perineum resutured at the BUPA Hospital, Redbridge. G initially instructed Field Fisher Waterhouse in October 1999. The Trust denied liability (not withstanding that the internal complaints investigation had failed to support the midwife). A Claim Form was issued on 18 December 2001. A Defence was received denying liability. On 27 September 2002 we put forward an offer in the sum
MEDICAL NEGLIGENCE REVIEW 2004 of 30,000, which was rejected. Janine Collier arranged and attended Mediation on 8 April 2003. Following this the claim settled in the sum of 25,000 plus costs. The case was conducted on a no win no fee basis. D v North West London Hospitals NHS Trust D gave birth to her first child on 7 January 1997, then aged 26. She suffered from a traumatic Delivery by a Neville Barnes forceps due to fetal distress. The baby weighed 9lb 10oz and an episiotomy was performed. D suffered a third degree tear and damage to her external anal sphincter which was repaired in theatre. Following the birth, D suffered from faecal and flatal incontinence and because her underlying condition of Crohn s Disease, this was particularly disabling. D had never been incontinent before. In addition she suffered perineal pain and became depressed. In 1997 D underwent anal ultrasonography which showed the damage to her sphincter but this was not followed up and D was not told of the result. Samantha Critchley conducted an investigation with appropriate experts which identified two areas of potential negligence:- Failing to identify the extent of the tear and therefore a failure to carry out a full repair; and Using the wrong suture material. The Defendants vigorously denied liability. A trial was fixed for December 2003. A week before trial a Round-Table Meeting was held to attempt to settle the claim. Settlement was not achieved at that meeting. Shortly afterwards the Claimant accepted the sum of 135,000 in full and final settlement of her claim and the Defendant Trust provided a formal letter of apology. This was an important part of the settlement for D. The case was conducted on a no win no fee basis. U v Dartford & Gresham NHS Trust This case concerned the surgical management of a fourth degree tear following the delivery of U s first child on 22 July 1999. On 20 July 1999, the Claimant was admitted to hospital for induction of labour. At 7:00am on 22 July 1999, U was fully dilated and she was transferred to a small theatre. Forceps were applied and at around 7:45am a baby girl was delivered. U was diagnosed as having a tear through the anal sphincter extending into the rectal mucosa. Later that day the Claimant had an accident when her bowels opened. She was attended to by the nurse and she was unable to walk to the toilet. She also passed faeces through her vagina. She was subsequently discharged on 26 July 1999. On 27 July 1999, the Claimant was re-admitted and her perineum was noted to be gaping and looked infected. U was complaining of passing flatus through the vagina. She was transferred for advice from a colorectal surgeon at another hospital where she underwent an examination under anaesthetic on 29 July 1999. The operation note recorded that there was a complete disruption of the perineum, third degree tear through all the sphincter and anal mucosa to the level of the lower rectum. There was no possibility of reconstruction and the repair had to be delayed. As a result of her injuries U underwent in excess of 15 additional procedures and investigations, including perineal repair, a mucosa flap operation and fistula repair. U was left with residual bowel symptoms and she suffered post traumatic stress disorder of moderate severity and a depressive adjustment disorder. Supportive expert evidence was obtained on the issue of liability from an Obstetrician and a Colorectal Surgeon. We contended that there had been an inadequate repair of the tear which led to the incontinence and subsequent problems. The Defendant Trust denied liability and argued the Claimant s wound became infected for non-negligent reasons which would have led to wound breakdown and subsequent incontinence. A negotiated settlement was reached in October in the sum of 65,000 by Samantha Critchley who also conducted the case on a no win no fee basis 9 Paediatric Surgery S v Hillingdon Health Authority R was born in Iraq on 3 January 1978. At about six months of age he was found to have a cardiac murmur and was referred to the Harefield Hospital for investigation and possible correction of Fallot s Tatralogy.
FIELD FISHER WATERHOUSE R s parents brought R to the UK as a private patient. On 15 August 1978 he was admitted for cardiac catheterisation, a routine preliminary investigation to establish whether he was a suitable candidate for corrective surgery. His pre-medication prior to the catheterisation included the drug Omnopon a morphine based opiod. R was given 12mg, almost three times the correct dose of Omnopon. As a result he suffered from the characteristic features of an overdose that is drowsiness, cyanosis, poor respiration and hypoxia. The procedure had begun at 12 noon and by 19:30 hours his neurological condition had deteriorated significantly so that there were signs of severe and by now irreversible brain damage. The following day R s leg was recorded as definitely bluer and on 30 August 1978 he underwent a through knee joint right leg amputation. The operation to correct the Fallot s Tatralogy had to be postponed was eventually carried out successfully on 27 November 1978. In the months and years which followed it became clear that R had suffered catastrophic diffuse brain damage and that he was severely handicapped. He made minimal development and progress and although he has matured to the size of and weight of a man, his abilities have remained those of a very small baby. He is very severely disabled mentally and physically and is totally dependent on his parents for all care. R has no use of speech and makes only occasional comprehensible noises. He has negligible vision and is registered blind. He is doubly incontinent. His right arm has a stiff spastic posture and he uses his left arm by preference. Liability was strenuously denied by the hospital, both at the time of the surgery and during the initial correspondence with the hospital. However on 16 July 2002 some twentyfour years after R s birth and some two years after the initial letter of complaint liability was admitted. Nevertheless the hospital s advisors continued to fight on quantum of damages arguing in particular that R had a low life expectation. The matter came before Mr Justice Astill in December 2003. After two days of argument the Defendants finally made an offer in the sum of 5 million which was approved by the court on 15 December 2003. The case was conducted by Paul McNeil with the assistance of Legal Aid. 10 Psychiatry R v Guy s & St Thomas Hospital Janine Collier acted on behalf of MR a German national. On 13 August 1995, 2 days after he arrived in London, M presented to Kings College Hospital because his psychiatric condition had deteriorated. M was assessed and transferred to St Thomas Hospital. M was prescribed medication for depression with psychotic features. A suicide risk assessment considered that M presented little risk. On 16 August 1995, M s condition deteriorated and at 21.15 he was placed in a side room for special observations. At 22.45, M attempted to gouge out his left eye with his fingers and was only successfully restrained after security had been called. During the night M s condition stabilised but the care plan advised ensure a nurse is with the patient at all times considering he was at risk of further self-harm. At 5.15 whilst a nurse was at the toilet M threw himself from a 6th floor window smashing the glass. As a result of his fall to the ground, M sustained multiple injuries which required the insertion of a colostomy and a right-above knee amputation. In December 2002 FFW were instructed in place of previous solicitors. The Legal Services Commission had requested that the case be transferred to a firm of Solicitors with a franchise for clinical negligence work. The Claim progressed on the following basis:- following the eye-damaging incident, there was a significant further risk of self harm which should have been addressed by the clinical team involved. an observation plan should have required that a nurse should have been placed in the room with M at all times. The failure to provide such a nurse was negligent. The assessment of damages was unusually complicated. The principal difficulties in assessment of damages were that M s psychiatric history would have probably interfered profoundly with his lifestyle including his ambition to be a teacher. Further, after the accident, the Claimant went to
MEDICAL NEGLIGENCE REVIEW 2004 live with his father in Germany who discouraged him from obtaining psychiatric care and treatment. Also the German equivalent to the NHS and/or Social Services Department which had provided equipment and care to M settled its claim with the Defendant a few months before the trial. This later event impacted on the claim for future care and equipment. The eventual settlement of 400,000 was negotiated by Janine Collier. 10 Who we are Who we are FFW s medical negligence team comprises: Paul McNeil Rodney Nelson-Jones Richard Earle Samantha Critchley Janine Collier Please contact Paul McNeil for more information E-mail: paul.mcneil@ffw.com This publication is only intended as a general guide to a complex subject. It should not be relied upon as a substitute for advice in particular circumstances. Copyright Field Fisher Waterhouse 2004. This publication is not a substitute for detailed advice on specific transactions and should not be taken as providing legal advice on any of the topics discussed. Copyright Field Fisher Waterhouse 2004. All rights reserved Field Fisher Waterhouse 35 Vine Street, London, EC3N 2AA t: +44 (0)20 7861 4000 f: +44 (0)20 7488 0084 e: info@ffw.com www.ffw.com www.thealliancelaw.com