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02 April 2013
Clinical Negligence Solicitor James Bell represented Mr K, the client in the case study below. Our client had sustained football injuries to his right knee in 1997, 2005 and 2008. In both 1997 and 2005, he received conservative treatment. In April 2008 however, he sustained a non-contact rotational injury to the right knee.
He initially attended the A&E Department of Whipps Cross Hospital and was seen on a private patient basis by Mr A, Consultant Orthopaedic Surgeon, funded by the NHS.
After an MRI scan was undertaken, Mr A recommended an Anterior Cruciate Ligament (ACL) reconstruction. On 7 August 2008, our client underwent a right ACL reconstruction using a patellar tendon graft. This was carried out under the care of Mr A at Holly House Hospital. Our client told us that despite post-operative rehabilitation at Holly House Hospital he struggled to regain movement of the knee.
To investigate matters further, our client sought a second opinion from Mr T, Consultant Orthopaedic Surgeon at The Whittington Hospital, on 6 November 2008. Mr T took the view that tunnel misplacement occurred at the time of the primary ACL reconstruction. He therefore underwent an arthroscopy and removal of the tibial screw in the right knee in November 2008 at The Whittington Hospital. Despite the knee becoming increasingly unstable, our client reported an improved range of movement.
Our client underwent a first and second stage revision ACL reconstruction in 2010. Both took place at The Whittington Hospital. They were performed well but unfortunately, our client continued to experience instability, pain and swelling.
James was instructed to find out what (if anything) had gone wrong and the level of future problems that Mr A would experience. He was a young man in his 30s so any impact on his work could be very costly to him.
James' instructed expert asserted that the ACL reconstruction of 7th August 2008 was “performed poorly”. He stated that the “femoral tunnel is anterior but the tibial tunnel is very anterior and in a totally unacceptable position. The tibial screw…was never placed within a tibial tunnel but was placed in the soft tissues anterior to the tibia.” Although “some latitude needs to be given for minor degrees of tunnel misplacement – however the tibial tunnel is so far out of satisfactory position that I would state that its placement represented surgery of a level below that of a competent orthopaedic surgeon” (Page 14). In essence, he concludes that a “competent orthopaedic surgeon, and certainly a specialist knee surgeon, in 2008, should not have made such surgical errors, and the placement lies outside ‘outlier status’ for a competent surgeon.”
As a result of the clinical negligence our client had:
1. A 40% chance of developing significant osteoarthritic symptoms as a lifetime risk
2. A 20% lifetime risk of requirement for a total knee replacement (TKR)
3. A 20% chance of risk of developing significant osteoarthritic change before 60
4. A 10% chance of requirement of a TKR before the age of 60
5. Also, Mr K would have been able to play sport from 27-42 years of age before medial compartment symptoms prevented him from doing so
6. There was a 90-95% success rate for stabilisation with competent ACL surgery.
The assessment of risks of all that potential surgery was as follows:
1. A 70% chance of success for a re-revision reconstruction in providing a stable knee
2. If the knee is not stabilised, osteotomy or TKR by the age of 40
3. If there is a stabilised knee, there is a high risk that a TKR will be needed by the age of 60
4. Osteotomy lifespan approximately 10 years
5. Primary TKR lifespan 15 years
6. Revision TKR lifespan 10 year
The costs of all this in the private sector would be:
1. Osteotomy £12,000
2. Primary TKR £15,000
3. Revision TKR £25,000
James also calculated the potential loss of income due to time off as a result of future surgery, and thought that the claim was worth just under £100,000.
Initially, there was much correspondence between James, the Medical Protection Society on behalf of Mr A, Holly House Hospital and NHS Redbridge, regarding the identity of the appropriate Defendant(s).
In light of the difficulty in identifying the appropriate Defendant(s), a letter of claim was sent to all three potential Defendants.
NHS Redbridge stated that it had funded services provided by Holly House Hospital for our client but was not liable for his care. Holly House Hospital responded, to say that the surgeon, Mr A, was an independent practitioner and that they too were not liable.
Finally, after legal proceedings were threatened, the Medical Protection Society confirmed that they had instructions to “settle this matter without admission of liability”. However, after more correspondence, the Medical Protection Society (“MPS”) finally confirmed that Mr A admitted liability.
After some further negotiations this orthopaedic injury claim finally settled for £100,000 compensation. Our client was satisfied with the outcome.
I think that this case goes to show that ACL repairs are not minor surgery and if performed badly can sadly lead to a lifetime of problems.
If you have a query regarding negligent surgery please call Slater and Gordon Lawyers for a free consultation on freephone 0800 916 9049 or contact us online.
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