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Case Study

Medical negligence claim against North Devon healthcare NHS Trust can continue

Fieldfisher have successfully opposed an Application to strike out their client's claim for medical negligence against North Devon Healthcare NHS Trust. We had taken over conduct of the claim from other solicitors.

Our client, Mr Edward Appleby, was involved in a serious road traffic accident on 2 June 2005. He was taken to North Devon District Hospital where he underwent surgery on his right leg.  Unfortunately, he developed Compartment Syndrome which went unnoticed for several hours. Since then, he has required over 20 operations to improve the function of his leg. Despite this treatment, and as a result of the failure to treat the Compartment Syndrome, his leg was eventually amputated below the knee in August 2009. 

Mr Appleby brought a claim against the driver of the car in the road traffic accident which was settled in September 2009, shortly before trial. On the advice of his previous solicitors he accepted a significant discount in his damages for contributory negligence to reflect the fact that he may have contributed to the accident.

He began a second claim for medical negligence against North Devon Healthcare NHS Trust for failing to identify and treat his Compartment Syndrome in time on 2 June 2008. His previous solicitors made little progress with the case and no reference to the previous RTA settlement was made in the Court documents.

The Defence was received on 3 September 2010 denying liability. Towards the end of 2011, the Defendant, North Devon Healthcare NHS Trust, applied to strike out Mr Appleby's claim against them on the basis that he had had already been compensated for all the injuries that he had suffered, including his amputation, when his claim was settled against the driver of the car. They argued that if they were obliged to pay him further compensation, this would amount to double recovery.

If the Defendant's Application had been successful, Mr Appleby's compensation would have been entirely inadequate to compensate him for the severity of his injuries and his future needs in relation to housing, care, therapy and prosthetics. He was understandably worried about this prospect and instructed us to take over conduct of his case at the end of March 2012.

In a short space of time, and despite delays from his previous solicitors in providing us with his papers, we were able to address the issues in his case.  We instructed Elizabeth Anne Gumbel QC to represent Mr Appleby at the hearing. We successfully argued that any damages that might be awarded in the medical negligence claim would not amount to double recovery. 

This was because his road traffic accident claim was reduced to take into account contributory negligence. However, as it could not be said that Mr Appleby was in any way at fault in relation to the treatment he had received at the North Devon District Hospital, the same reduction should not apply to any damages that they might be obliged to pay. It would therefore be unjust to deprive him of the opportunity to seek the 'additional' compensation from them.

The Defendant's Application was therefore refused; the claim for medical negligence continues.

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