Background
Jane first came to Alex Barley of Slater Heelis for advice on a personal injury claim following an accident at work. She had ruptured the anterior cruciate ligament (ACL) of her left knee whilst skiing earlier that year and had it reconstructed privately by the Defendant surgeon, funded by her health insurance. The reconstruction appeared to go well, and following a course of physiotherapy, she appeared to have regained good stability and function within her knee and had returned to work.
When Jane slipped at work later in the year, she immediately felt pain in her left knee and assumed that she had undone the surgeon’s good work. She went back to the surgeon, who reassured her that the reconstructed ligament was still intact, suggested that she may have torn cartilage in her knee and recommended further physiotherapy.
Despite the ongoing treatment, Jane’s knee became more unstable and further exploratory surgery carried out by the surgeon in question indicated that her ACL had ruptured. Within the records, the surgeon made it clear that it was his view that this had happened when she had slipped and fallen at work, despite previously reassuring Jane that her scans showed that the ACL was still intact following the fall. Jane then underwent two-stage revision reconstruction surgery of the ACL with the Defendant surgeon.
Following the revision surgery, Jane never made a full recovery and had ongoing pain and instability in the knee.
As part of the personal injury claim for the accident at work, evidence was obtained from a Consultant Orthopaedic Surgeon in respect of the extent of the damage caused to the knee during the fall. Quite surprisingly, this report indicated that Jane had only suffered a minor soft tissue injury during the fall and that the re-rupture of the ACL was due to the Defendant surgeon’s poor surgical technique. Essentially, the repaired ACL had virtually no prospect of succeeding and was bound to fail at some point.
The accident at work claim was settled for a modest sum, in keeping with the minor soft tissue injury that the medical expert stated was caused, and Jane instructed Alex to pursue a claim for clinical negligence against the Defendant surgeon.
Liability was denied throughout by the Defendant surgeon over a period of 4 1/2 years. He maintained that the further rupture of Jane’s ACL was caused by the fall at work. This meant that significant expert evidence was required from an eminent orthopaedic knee surgeon and consultant musculoskeletal radiologist, who both confirmed the view of the orthopaedic expert in the personal injury claim that the ACL repair performed by the Defendant surgeon was substandard and bound to fail. This was a view shared by Jane’s new treating surgeon, who did her best to rectify the poor state that the Defendant surgeon had left her knee.
The Defendant surgeon and his legal team took the unusual step of asking the treating radiologist to review the results of an MRI scan taken shortly after the accident at work, which confirmed that the repaired ACL was still intact, in an attempt to show that it was, in fact, ruptured at this stage. Whilst the treating radiologist did not change opinion, this did not stop the Defendant surgeon defending the claim on this basis.
At this stage, there were three consultant orthopaedic surgeons and a radiologist, all stating that the ACL reconstruction carried out by the Defendant surgeon was done below a reasonable standard. In response, the Defendant produced a brief report from their own experts, a retired orthopaedic surgeon, which relied entirely on misinterpretation of the treating radiologist’s report and the orthopaedic surgeon Slater Heelis had instructed on behalf of Jane, commented that it was one of the poorest expert reports he had ever seen.
As a result of the repeated surgeries that Jane had undergone, she developed respiratory issues and a recurrent cough, along with psychological damage. Further evidence was therefore required from a respiratory consultant and a clinical psychologist.
Following the issue of Court proceedings, although the Defendant surgeon still completely denied any wrongdoing, his legal team made a settlement offer to Jane of £75,000. Following a period of negotiation, Alex was able to achieve a settlement of £150,000, which included the additional treatment cost incurred by Jane’s medical insurers and was refunded to them.
Comment
This case stands out due to the Defendant surgeon’s repeated failure to acknowledge any wrongdoing and shocking attempts to rewrite Jane’s medical history by incorrectly stating in her records that the rupture was caused by the accident at work and seeking to have the radiologist also change his opinion to support his case. This made the final settlement of the claim even more satisfying as justice was finally done.
Get In Touch
Alex Barley is a Partner in our Personal Injury team.
For further information on the above subject, please contact Alex or another member of the team on 0330 111 3131 or via our contact form.
