The Clinical Negligence team at McMillan Williams Solicitors Limited acted for the Claimant in relation to a clinical negligence claim against Guy’s and St Thomas’ NHS Foundation Trust. 


Andrew Bentham
Andrew Bentham
Partner - Injury

The claim related to the management received at St Thomas’ Hospital in 1999 and 2000 for a serious bone infection in the Claimant’s right tibia.  The Claimant has sadly been left with a serious, permanent chronic pain condition which requires extensive medication and which has had a profound effect on his life.

The claim has a long and somewhat unfortunate procedural history.   A liability trial had originally been listed for March 2017.  In November 2016 it came to light that the Defendant had failed to disclose around 600 pages of crucial medical records.  As a consequence the trial in March 2017 had to be vacated and a liability only trial was listed for March 2018.  The liability only trial took place on the 7th March 2018 before Her Honour Judge Taylor sitting as a Judge of the High Court.  Mr Ben Collins QC of Old Square Chambers was instructed to act for the Claimant.

Summary

The Claimant suffers from sickle cell anaemia. On the 10th August 1999 he was admitted to St Thomas’ Hospital with a painful swelling over the right shin. Acute osteomyelitis was suspected and the Claimant underwent surgery for incision and drainage on the 13th August 1999.  Following the operation, the wound remained open and the Claimant underwent a long period after this operation when the exposed bone, including exposed cortical bone, remained uncovered by soft tissue or skin.  An attempt was made to close the wound in theatre on 3rd September 1999, but this was unsuccessful and the bone remained exposed on the 15th September 1999 when he was discharged home from St Thomas Hospital.

Over the following months the Claimant continued to have an open wound with exposed cortical bone. In January 2000 the Claimant was reviewed by an Orthopaedic Surgeon who noted the long period of exposed bone and continuing discharge.   A CT scan confirmed a cavity and a possible sequestrum.  The Claimant was admitted on the 16th March 2000 and underwent a guttering procedure on the following day.  A large area of bone was removed.  The Claimant was discharged home.   The bone infection developed into chronic osteomyelitis which has left the Claimant with a serious and chronic pain condition.

Judgment

It was argued by the Claimant that the Defendant’s antibiotic management was inadequate and that steps should have been taken to provide coverage of the bone left exposed following the operation on 13th August 1999, in particular by undertaking a local muscle flap.  It was also alleged that the Defendant should have undertaken further surgical debridement/guttering so as to facilitate a local muscle flap procedure.  It was the Claimant’s case that proper coverage of the exposed bone, together with a proper antibiotic management strategy, would have led to cure of the osteomyelitis such that the Claimant would not have been left with chronic pain.

Her Honour Judge Taylor gave judgment for the Claimant. She noted that on the 16th August 1999 the Defendant was in breach of duty in failing to take the Claimant back to surgery for further debridement, followed by tissue cover provided by a gastrocnemius flap.   The Judge held that had the Claimant been treated by debridement, flap and antibiotics, the likelihood was that he would have been cured of osteomyelitis, or at least free from it for a long period. Flap surgery would have succeeded and the current type of crater with friable skin would have been avoided. He would have avoided the long subsequent history of infection and pain specifically attributable to it.

There are a number of interesting aspects to this case, two of which are considered here.

This was, self-evidently, a case relating to matters which took place a long time ago. There was an incomplete set of medical records (and those records which were available were of the standards of the time – described as “telegraphic”). Nevertheless the Defendant did not rely on live witness evidence from any of the treating physicians or nurses who were responsible for the Claimant’s care.   The Defendant confirmed that attempts had been made to locate some of those concerned, which had not been successful given the passage of time.  Civil Evidence Act notices were served in 2016, some time before the trial, confirming that they had left the employment of the Defendant and efforts to date to trace them had been unsuccessful. The Judge noted that little information had been provided as to steps taken before or since then.  As a result the history had to be taken primarily from those notes which were available, and the interpretation of some key documents were in dispute between the parties.  The issue arose as to what inferences, if any, should be drawn from the records.  The Judge concluded that it would have been of assistance to hear from those involved what their practice would have been in 1999-2000, even if they did not recall all the detail of this particular case.   She held, therefore, that where the notes fell short, and were ambiguous or there were gaps, although the burden remained on the Claimant, the Defendant should not have the benefit of these deficiencies, nor of the unexplained lack of explanatory witness evidence. The ruling may be of assistance in other cases in which notes are limited and live evidence is not available to explain them or fill in gaps.

The case also serves as a warning as to the need for experts to maintain their independence, in particular in the circumstances of changing facts. The Judge was critical of the Defendant’s expert Orthopaedic surgeon. She took account of his “eminence and undoubted competence” but she “reluctantly concluded that in some respects in this case, his evidence was either diverted away from independence and genuine belief by errors underpinning judgements he made, which he then felt the necessity to justify, or that as a result his evidence on these aspects is not soundly based in fact”

By way of example, she continued:

“In particular, the error about the size of the wound led to his initial view both that the wound was healing rapidly, justifying a wait and see policy, and the options for tissue coverage of the wound. Similarly, his error about the unavailability of free flap surgery in 1999 underpinned his view that the approach taken in relation to tissue coverage was justified at the time. Once these errors were identified, he changed his approach, but only so as to maintain his original position, continuing to ignore some of the available documentary evidence. In this respect the criticisms made by the Claimant of his evidence are justified”.

It may be difficult for an expert who has formed a firm view about a case subsequently to accept a change of approach as new facts emerge. This is an example which demonstrates the importance of experts doing so.

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