05.02.19 – Our client, a 48-year-old man from Broadstairs, Kent, was suffering with a bony prominence on the top of his left foot, which had been present for some years and which caused him some discomfort when wearing his work boots (but was otherwise of no consequence), when he was referred by his GP to the orthopaedic team at the QEQM Hospital in 2007 to ascertain what treatment options were available / recommended.
The initial assessment concluded that nothing should be done and our client was sent away with a follow-up appointment to be arranged a year later.
When our client returned in 2008, with the same symptoms as previously, he was seen by a different surgeon (Dr Kasiri). His analysis was that the bony prominence was amenable to straightforward surgery to shave the bone down. There was no detailed discussion regarding the risks of surgery and in particular the risks of nerve injury and chronic pain were not mentioned.
As the surgery had been explained to be straightforward, and without significant risk, our client decided to go ahead with the surgery in June 2008. Unfortunately, this surgery (although of itself not negligently performed) led to worse pain post-operatively. As a result, a second opinion was sought and further surgery was recommended, but this led to yet worse pain and there then began a vicious cycle of further surgery and worsening pain, spanning the next 10 years and a total of 22 operations on the left lower leg.
As a consequence, our client suffered a significant nerve injury which severely effects his day to day life. He is in significant pain all of the time, he takes regular pain medication, his mobility is much reduced, his ability to work has been compromised, and he is unable to pursue any of his previous sporting hobbies.
It was our client’s evidence (and that of his wife) that, had he been adequately advised as to the full risks of the surgery, he would not have proceeded with the surgery and would not therefore have suffered such a debilitating injury to his left leg / foot.
The Defendant denied the claim on both breach of duty (on the basis that the risks were adequately explained / consent was appropriately obtained) and causation (on the basis that the surgery itself did not cause a nerve injury – saying that the nerve injury was caused through subsequent further surgery which it was our client’s decision to pursue).
We made an opening offer to settle the claim in March 2015 in the sum of £500,000. However, the claim was hard fought by the Defendant, and their initial offer was a ‘drop hands offer’ (i.e. the claim would be discontinued with each side bearing their own costs). With the claim listed for Trial in May 2019, the Defendant made their first monetary offer in December 2018 in the sum of £150,000.
This was not accepted and the claim proceeded to a round table meeting (RTM) on 05.02.19. At that RTM, further negotiations took place and the claim was settled in the sum of just over £299,000.
Alex Tengroth, who had conduct of this case, said “this was a very long running and interesting claim which I am very pleased we were able to bring to a successful conclusion, as there were certainly substantial risks involved in taking the claim to Trial (not least as the claim hinged on the factual evidence of my client). Our argument on breach of duty was supported during the course of the claim by the decision of the Supreme Court in the Montgomery case (which conferred a greater responsibility upon doctors to discuss all treatment risks with patients), but there remained a significant risk on causation.”