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Medical Negligence Claim: Example Case from JMW Solicitors
B E T W E E N :
KATHRYN LOUSE BERRY Claimant
-v-
EAST LANCASHIRE HOSPITALS NHS TRUST Defendant
CASE REPORT - SETTLEMENT
Background to the Medical Negligence Claim
The Claimant was born on the 4th September 1984. On the 24th October 1996, when she was 12 years old, she was involved in a road traffic accident and knocked down by a car, injuring her right shoulder. She was taken to the Accident & Emergency Department at Burnley General Hospital where an antero-posterior (AP) X-ray examination revealed her to have suffered a displaced fracture of the neck of the right humerus. She was admitted to the hospital under the care of the Orthopaedic Team.
That same day she was examined by one of the Orthopaedic Team who noted:-
“Right upper limb; swelling right shoulder; tender; reduced painful movements… Plan: Manipulation under anaesthetic. ? K-wires”.
No lateral X-rays had been taken prior to the plan having been formulated.
The Claimant was taken to theatre on the 25th October and underwent attempted manipulation of the fracture. The surgeons notes recorded:-
“Manipulation under anaesthetic of displaced fracture neck of right humerus attempted but distal fragment would not shift from its lateral position in relation to radial head. Massive swelling of right shoulder area developed over last few hours.
Discussed with Consultant over telephone who feels that soft tissue inter position is likely.
Plan: Leave in collar and cuff and allow swelling to settle. Consultant to review mane. ? open surgery when swelling settles”.
The Claimant was reviewed on the 25th October by the Consultant when it was noted that her shoulder was very swollen. She was sent home in a sling and was to be seen in the Fracture Clinic with X-ray on arrival, the plan being further manipulation under anaesthetic with or without open reduction.
On the 1st November 1996 the Claimant returned to hospital when a further manipulation under anaesthetic was attempted. An unstable reduction was achieved with great difficulty under image intensifier control. The fracture had become “sticky” and had to be broken and this caused further swelling. Two K-wires were inserted and it was thought an acceptable position was achieved. Open reduction was not undertaken in view of the massive swelling following the manipulation. X-rays were taken at the end of the procedure but only an AP view was possible.
Following the operation, the Claimant remained in hospital and further X-rays were taken on the 2nd November. Again, no lateral X-ray was taken.
On the 5th November 1996 the Claimant was again reviewed by the Consultant, whereupon he requested his Registrar perform an open reduction and internal fixation of the fracture. The operation was performed on the 6th November 1996.
At that operation it was noted that the biceps tendon was trapped in the fracture site. The reduction was described as “very very difficult” due to tight tissue. Great difficulties were encountered in reducing and maintaining the fracture in a good position. There remain slight angulations on the lateral views. The Consultant was called to theatre and three attempts were made to achieve reduction but every time the position was “not perfect”. In the end, the position achieved was accepted. The surgeons failed to achieve anatomical reduction of the fracture during the course of the operation.
Post-operatively the Claimant developed wound infection, which required early removal of the K-wires. She continued to suffer from pain and stiffness in the shoulder and was ultimately referred to Wrightington Hospital for a second opinion, where CT examination revealed an external rotation deformity of the head of the humerus.
The Claimant underwent further surgery in July 1999 at the Royal Manchester Children’s Hospital for an osteotomy of the right humerus, involving a bone graft harvested from the right iliac crest.
The operation was successful in improving the Claimant’s range of movement, however she had some residual discomfort and stiffness and some reduction in movement in her right shoulder. She was also left with extensive hypertrophic scarring over the right shoulder and hip.
The Claimant contended that achieving a total anatomical reduction of a fracture of the neck of the humerus in a child was not essential, given the marked growth and re-modelling potential of the child’s proximal humerus. Accordingly, careful conservative treatment alone is likely to have sufficed to achieve satisfactory reduction of the Claimant’s fracture after the 1st November 1996.
Furthermore, the Claimant's medical negligence lawyers argued that given the absence of lateral as well as a P X-ray view is the degree of displacement of the fracture cannot properly be assessed. Furthermore, it ought to have been known that achieving improved reduction via an open operation on the 6th November 1996 would inevitably be difficult, 19 days having passed since the Claimant sustained her fracture.
In its response to a letter of claim the Defendant contended that a fracture of the humerus, with the degree of displacement experienced by the Claimant, was a difficult fracture to treat. A lateral X-ray was almost impossible to take in the A&E Department because of the degree of severe pain associated with the type of fracture, together with the degree of swelling. The Defendant contended that there was no need to take a lateral X-ray as the Claimant was to undergo manipulation under general anaesthetic and image intensifier control.
The Defendant further denied that conservative treatment would have prevented the fracture from going into mal-union. The Defendant suggested that the biceps tendon was caught in the fracture site and as such it was unlikely that the fracture would have reduced into anatomical position by conservative treatment alone. Furthermore, the Defendant argued that it was reasonable to use K-wires in an attempt to maintain the reduction of the fracture. Finally, it denied that the decision to proceed to open reduction and internal fixation on the 6th November was negligent.
In summary, the Defendant contended that the external rotation deformity, osteotomy and scarring was a consequence of the severe nature of the original displaced fracture and was not due to the treatment provided by the Defendant.
Outcome of Medical Negligence Claim
The parties agreed to proceed with the exchange of witness and expert evidence prior to the commencement of Court proceedings. Subsequently, there was a discussion between the orthopaedic experts instructed by the Claimant (Mr. S. Norris) and the Defendant (Mr. J.C. Faux). Following the production of a joint statement, the Defendant’s Solicitors opened negotiations. Eventually the matter was settled in the sum of £20,000.00, which approximately £17,000.00 was for the Claimant’s pain suffering and loss of amenity with regard to the shoulder injury, scarring and psychological sequelae.
Case Report submitted by:-
Eddie Jones
Medical Negligence Lawyers for the Claimant
JMW Solicitors
Manchester
Counsel for the Claimant
Sally Hatfield
Peel Court Chambers
Manchester
Solicitors for the Defendant
Hempsons
Manchester
