ML v Ealing Hospital NHS Trust

M the Claimant pursued a claim in relation to surgical negligence arising from D’s failure to provide her with appropriate care when she underwent a left total knee replacement on 18 June 2009.

Background
In the past, M had a problem with deep vein thrombosis and was on warfarin. She had been on anticoagulation having been diagnosed with deep vein thrombosis two years previously. She was admitted at short notice to Ealing Hospital on 12 June 2009 having been telephoned by the hospital to say that a bed had become available for her to undergo a left total knee replacement. Her warfarin was stopped and she was put on some form of infusion and blood tests were taken.

She was prepped for surgery and underwent the said surgery on 18 June 2009. Post operatively she woke with terrible pain immediately. She described the pain as being something so severe she had never experienced pain like it before and she remained in hospital until 12 July 2009. She was then readmitted seven days later and remained in hospital until middle August 2009. She was then transferred to Charing Cross Hospital under the care of Dr Jane Pritchard a neurologist and she was told she had a damaged femoral nerve and also possibly the obturator and lateral cutaneous nerve of the left thigh due to a combination of the tourniquet and the femoral nerve block. Nerve conduction study tests were carried out on 30 July 2009 which almost certainly led to this conclusion. Findings were consistent with a severe axonotomesis lesion involving the left femoral nerve and to a lesser extent the obturator nerve and lateral cutaneous nerve of the left thigh.

Further nerve conduction study tests were carried out on 27 August 2009 and 13 November 2009 and these revealed that:

“Comparison was made with the previous study of 30 July 2009. There is marked improvement in both femoral and obturator nerve as evidenced by the disappearance of fibrulations from the quadriceps and abductor magnus, an increase in motor unit activity.

The morphology of the motor unit suggests further improvement is still likely. The response from the left lateral cutaneous nerve of the thigh is still absent.

There is no evidence of denervation in the parastinal muscles on the left.

There is also no evidence of denervation in a muscles tested in the right arm and right leg.

Nerve conduction studies are also normal on the right side.”

At the time of her injury on 18 June 2009, M was employed at a school as a teaching assistant. It was a school for children with learning disabilities and M had to spend a lot of her time kneeling or crouching down to the level of the children. M was unable to return to work following her surgery and officially left her job on 25 August 2010 on the grounds of ill health.

M required care and domestic assistance from her family in particular her husband who is fourteen years her senior and in poor health himself. She also requires care and assistance from her three children who are aged between 19 and 27.

As a consequence of her injuries M is left with nerve pain in her left leg which requires extensive painkilling drugs and leads to interrupted sleep and this means that M has to sleep for short periods during the day. These short naps often make her disorientated and she is tired most of the time.

M also has gross immobility and can only walks short distances she also suffers sensitivity in cold weather in her left leg and left foot. She requires care and domestic assistance from her family in respect of personal care, preparing drinks, snacks and meals, fetching and carrying, domestic cleaning and laundry, shopping and initially she required help with childcare as her youngest child was 13 years of age at the time of her injury. M also required various aids and appliances to assist with her mobility difficulties.

M relied on expert evidence in respect of breach of duty from Dr Andrew Farmery, (Consultant Anaesthetist), Mr Martin Bircher (Consultant Orthopaedic Surgeon) and a report on causation from Professor A H V Schapira (Professor of Neurology). A report was also obtained from Dr Bryan Youl in respect of EMG studies which he had carried out.
In relation to issues pertaining to quantum a joint report was obtained from Jaq Twelftree, (physiotherapist), further reports were obtained from Tom Wethers (housing expert), Sandy Gowerings, (care and case management), Mr Peter Baird (Consultant Orthopaedic Surgeon) and Professor A H V Schapira.

Procedure
A Letter of Claim was sent to the Defendant on 10 February 2012. Proceedings were issued on 31 March 2012 and served on 10 August 2012 and a Defence was filed denying liability in January 2013, an Amended Defence was filed in August 2013. A CMC was fixed for 30 July 2013. A Reply to the Amended Defence was filed and Directions were thereafter complied with. A split trial was agreed between the parties and a trial date was fixed from 19 March 2014. Prior to that the expert’s discussions took place in February 2014 and joint statements were filed. Liability was admitted in March 2014. Liability was agreed at 90% and M received an interim payment of £30,000 from the Defendant in April 2014 and a further interim payment of £16,000 in April 2015.

The Defendant made a Part 36 Offer of £150,000 to M in full and final settlement of her claim this was rejected by M and a counter offer of £600,000 at full value was made on her behalf thereafter.

A joint settlement meeting took place on 24 June 2015 and following negotiations and after a 35% reduction on the medical issues and future surgery outcome and further 10% reduction in respect of liability issues, the case settled in the sum of £400,000 inclusive of CRU which calculated at just over £42,000 and two interim payments totalling £46,000.

A breakdown of the damages are as follows:
Total PSLA past and future loss in the region of £685,000 less 35% discount and a further 10% discount to reflect 90% liability. Claim for pain, suffering and loss of amenity equated to in the region of £57,000, past care £35,000, travel expenses of £500, loss of earnings as £19,500, miscellaneous expenses of £1,500 plus interest of £1,500. Total PSLA and past loss was agreed at £115,000. The remaining losses were made up of future care, case management, accommodation, equipment including physiotherapy.

Stephanie Prior, Partner
Osbornes LLP solicitors for the Claimant