Following incomplete endoscopic removal of a cancerous polyp, Lindsay’s client, AB underwent further surgery in 2008, resulting in peritonitis, acute renal failure and pelvic sepsis. His colon was necrotic and his pelvic floor had disintegrated. A left iliac fossa end stoma was performed but AB then developed an extensive stomal hernia. Further investigations identified that the portion of the rectum containing the cancerous polyp had never been removed.
AB was left with a permanent colostomy and suffered two abdominal hernias due to the surgery, resulting in loss of mobility and pain as well as impotence, urinary symptoms, depression and anxiety. He also has a 33 per cent risk of developing further problems.
Lindsay alleged that the surgery in 2008 fell below an acceptable standard of care and that there was a failure to diagnose peritonitis before discharge. The defendants failed to serve a defence on time and unsuccessfully applied to serve their defence late, enabling AB to enter judgment for damages to be assessed. The defendants also made a late application to rely on expert evidence on AB’s life expectancy, which was also rejected by the court.
The case was settled, days before trial, for £800 000, taking account of AB’s need to move to a home adapted to his needs, with provision for a sleep-in carer. An order for provisional damages was also obtained. This will allow AB to return to court if he develops a serious deterioration in his condition. AB was aged 78 at the date of settlement.
The defendants vigorously disputed every stage of the case, from liability to disclosure, to the need for essential equipment. The issues crystallised on whether the AB was entitled to the dignity of living independently and continuing with his pre-injury activities of cooking and driving and whether it was reasonable to expect his partner to provide night time care for the rest of his life.
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