Nadia Whittaker successfully defends Royal Liverpool and Broadgreen University Hospitals NHS Trust
Appearing before Recorder Kevin Grice, Nadia Whittaker instructed by Claire Christopholus of Hill Dickinson LLP, successfully defends on liability a claim with an agreed value of £200,000 in respect of an injury to the sciatic nerve following a total hip replacement surgery in 2015.
It was agreed by the parties that immediately after the surgery the Claimant developed an unusually severe sciatic nerve palsy associated with a foot drop and significant neuropathic pain.
The Defendant’s case was that this was a recognised complication of the surgery about which the Claimant had been warned.
The Claimant’s case was put on 4 separate bases:
- that the risks of the total hip replacement and their consequences were not explained to her, such that she did not provide her informed consent to the surgery;
- that there was a failure to undertake pre-operative planning in the form of digital templating, which would have ensured that a prosthesis of an appropriate size would have been available;
- that the prosthesis was inserted proud, resulting in leg length discrepancy and unreasonable force and tension required to reduce the hip; and
- that post-operatively, there was a failure to review by a senior Orthopaedic specialist and return her to theatre for exploration and decompression of a haematoma.
As there was a significant dispute of fact about the contemporaneous events, the Judge approached the disputed evidence in accordance with the principles in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 and Kimathi [2018] EWHC 2066 (QB) more recently applied by Stewart J in Ollosson v Lee [2019] EWHC 784 (QB), a clinical negligence case.
The Judge rejected the Claimant’s evidence that the risks and their consequences were not explained to her in the context of contemporaneous documents that indicated otherwise.
In relation to pre-operative planning and the performance of the surgery, the Judge observed that the Claimant’s expert, Professor Stockley, gave evidence in an “engaging and charming” manner, clearly wishing to assist the Court. He even brought along to the hearing plastic bones to demonstrate the relevant anatomy. However, the Judge was troubled by Professor Stockley’s apparent lack of appreciation of the Bolam/Bolitho test and of the need for the expert to provide a range of opinions. This resulted in Professor Stockley taking an absolutist position on a number of issues, which the Judge rejected, preferring the opinions of Mr Parkinson, Consultant Orthopaedic Surgeon, who gave evidence on behalf of the Defendant.
The Judge also rejected the Claimant’s factual account that shortly after the surgery one of the surgeons came to her bedside and made an ‘admission’ that she had small bones and that therefore he struggled to insert the prosthesis, resulting in an application of significant force and the sciatic injury. Although the Claimant firmly believed in this account and even put forward a corroborating account from her sister, applying Kimathi/ Ollosson principles, the Judge concluded that this account was a product of misunderstanding or a genuine reconstruction of events and that no such ‘admission’ was likely to have been made.
In relation to post-operative care, although it was conceded by the Defendant at the conclusion of the evidence that the Claimant should have been reviewed by a Consultant at an earlier stage and that radiological imaging would have been undertaken some 10 days earlier, the Judge found that the Claimant failed to discharge the burden of proof that, absent this failure, she would have been taken back to theatre and/or a haematoma would have been drained.
The Claimant’s Counsel, James McKeown, contended that the Claimant should succeed on the issue of post-operative treatment on the basis that the Defendant’s failure to obtain earlier imaging deprived her of an opportunity to prove that a haematoma compressing the sciatic nerve would have been present. The Judge rejected this submission on the basis that the burden remained with the Claimant to prove not just breach of duty, but causation as well. One of the Claimant’s experts highlighted in his report that in order to establish whether or not a significant haematoma would have been present at an earlier date, it was necessary to obtain evidence from an expert in radiology. The Claimant chose not to pursue this route of investigation and, since the other experts were not in a position to state on the balance of probabilities that a haematoma would have been compressing the sciatic nerve at an earlier stage, it was not possible to conclude that this would have been the case.
The Judge observed at the end that the Claimant suffered a severe injury about which she was properly angry, but this was not as a result of any causative breach of duty by the Defendant.
