One of the key aims of the NHS Litigation Authority (NHSLA) is to defend unjustified claims robustly. However, whether right or wrong over the years a perception built up amongst claimant firms that the NHSLA would usually be willing to make a payment, even on a heavily discounted basis, in order to avoid going to trial.
There has now been a sea-change and the NHSLA has become more robust than ever in fighting cases to trial. Hill Dickinson LLP is at the forefront of this and we have had numerous successes over the last few months. Here are some of them:
No delay in diagnosing gallbladder disease
The claimant was referred to the defendant trust by her GP with a history of gallstones. It was concluded that her symptoms were more typical of gastro-oesophageal reflux disease or peptic ulcer disease, unrelated to her gallbladder. She received treatment on that basis. However, in 2006 it was identified that, in fact, she had gallbladder disease and required surgery.
It was the claimant’s case that the diagnosis in 2002 was incorrect and that there ought to have been ongoing review. The claimant’s expert was Professor Winslet. Mr Royston, consultant surgeon for the defendant felt that it was not until September 2006 that the claimant first presented with symptoms referable to her gallbladder.
Ultimately the judge was not satisfied that the claimant was suffering from symptoms referable to her gallstones in 2002/2003 and approached her recollection ‘with caution’. He preferred the defendant’s expert evidence that the treatment provided did not fall below the standard of ordinary, competent surgical practice. He was not satisfied that there had been a failure to make a diagnosis of gallbladder disease earlier. Even if the claimant had established breach of duty, he considered that her claim failed on the grounds of causation, as she failed to attend for a follow-up appointment in March 2003.
No delay in performing microdiscectomy
The claimant was a consultant physician/geriatrician employed by the defendant trust. On Friday, 6 March 2009, he injured his back whilst examining a patient. He suffered ongoing symptoms over the weekend and was seen on Monday 9 March 2009 by a consultant orthopaedic surgeon. It appears the claimant was anxious for an MRI scan to be performed, but this was not felt to be necessary by the surgeon.
Nonetheless, the claimant made arrangements for a scan via another consultant colleague at the trust. The MRI scan was performed on 20 March 2009 and showed a small right sided disc prolapse at L4/5, impinging on the nerve root. It was felt that no treatment was indicated and a repeat MRI scan a few months later showed that the prolapse had resolved.
However, having initially returned to work, the claimant was then medically retired. His claim alleged a delay in undertaking an MRI scan and contended that a microdiscectomy should have been performed. He asserted he has significant neurological deficit including limited mobility, an insensate bladder, erectile dysfunction and pain.
At Trial HHJ Platt found that the claimant’s case depended upon him being able to demonstrate a neurological deterioration over the weekend, such as to indicate surgery on or shortly after 9 March 2009. There was no convincing evidence of this and, therefore, the claimant could not establish breach of duty. HHJ Platt also found that even if surgery had been undertaken, the outcome was unlikely to be any different in the sense that the claimant would still have been medically retired, because he would have been left with back pain and a foot drop regardless.
No delay in diagnosing intestinal obstruction
The claimant attended A&E complaining of abdominal problems which were considered to be caused by constipation and was discharged. He attended again two days later and was admitted because his stomach pains were becoming worse. The examining consultant was of the opinion that the claimant’s problems were related to constipation, but five days later ordered further investigation which revealed an intestine blockage.
The claimant alleged that the diagnosis was 24/48 hours later than should have been the case.
The claimant’s expert was Professor Thompson who was a consultant gastroenterologist and in none of his reports did he actually state that the claimant’s treatment was negligent. He thought it could have been better but at trial his evidence was that the treatment was reasonable and proper and similar colorectal surgeons would have adopted the same treatment plan. Mr Nigel Scott, consultant colorectal surgeon, gave evidence supporting the defence and never wavered in his opinion that the hospital treatment was correct.
Claimant’s counsel made an impassioned plea for an award of damages to the claimant but the judge had no option but to dismiss the claim and enter judgment for the defendant with costs.
No negligence in performance of total abdominal hysterectomy
The claimant underwent a total abdominal hysterectomy, bilateral salpingo-oophorectomy and omentectomy. Unfortunately following discharge she required emergency readmission some 12 days later with a perforated bowel.
The claimant alleged that the operation was performed negligently in that the operating surgeon failed to notice that he had caused a hole in the bowel and he failed to check and take appropriate steps to conduct a repair.
Supportive evidence was received from Mr Hammond, consultant gynaecologist, in respect of breach of duty and Mr Nigel Scott, consultant colorectal surgeon in respect of causation. Mr Hammond considered that an iatrogenic cause was very unlikely given the fact that the hole was 10cm away from the operation site. Mr Scott considered that pseudo-obstruction was the most likely cause of the perforation. This is where the colon becomes paralysed and as a result, fills with air and fluid - an explanation which fitted with claimant’s account.
Following a four day trial, the claimant’s claim was dismissed. Recorder Hartley QC found that if the claimant had been suffering from a perforated bowel from 12 July 2007, it would be most unlikely that she would have had no significant symptoms until the re-presentation on 24 July 2007. He also considered that the surgeon would not have failed to miss a 4cm hole in the colon.