£260,000 settlement following successful mediation
A major issue in the case hinged on the issue of informed consent. It was the Claimant's case that during a pre-operative assessment with her Orthopaedic Surgeon, she was given three options for treating her back pain – injections, interspinous spacers (surgical option), bone trim (decompression surgery). But the risks and benefits of each were not explained, nor were the comparative success/failure rates, particularly in light of her pre-existing condition. Notes of the consultation were sparse, with few details recorded.
The Claimant, a woman in her 60s, was advised to do her own online research before making a decision. It transpired from expert evidence obtained on behalf of the Claimant that even orthopaedic surgeons would have found it difficult to make a decision based on the wide-ranging information available online.
In light of the limited information provided to her, the Claimant went for the "middle" option.
At a review appointment prior to surgery, the Claimant's surgeon recorded the wrong procedure to be done and also provided little detail about the procedure itself, including the number of spacers to be inserted, and where they would be inserted.
During surgery, the surgeon perforated the Claimant's bowel, something not identified until three days later. She developed peritonitis and had to have an emergency laparotomy and colostomy bag fitted. She had to stay in hospital for more than six weeks, thereafter requiring regular District Nursing care for six months until she underwent a colostomy reversal.
Her back pain continued and it was only when she was referred to a Consultant Neurosurgeon in 2016 for further surgery that additional problems were uncovered. It was found two spacers had been inserted, both in the wrong place and which therefore had to be removed. The Claimant has experienced some improvement post procedure, but her symptoms have never completely resolved.
During proceedings, the Defendant admitted the Claimant's bowel had been perforated during surgery. They did not accept the consent process was inadequate. It was stated that the Claimant had been given a sheet of paper containing website addresses and search engine search terms, to look up. But it was accepted that this information was not documented. They also considered that the Claimant did not suffer any psychiatric injury.
The parties exchanged liability and quantum evidence, but remained some way apart on their respective valuations of the case. Trial was listed for May 2019.
The parties agreed to attend mediation in an effort to settle the case, prior to expert discussions which were due to take place shortly. After more than five hours of discussion, agreement could not be reached. However, a few days later, the Defendant accepted the Claimant's offer of settlement that had been made at the mediation.
At the end of the case, Mrs XX's husband said "We both feel that we need to write to you to express our thoughts on the way you handled our whole case. You were fully aware at all times that XX was very fragile, and conducted our phone calls and meetings with that in mind. Having said that, we found you the most tenacious person we have ever come across. Even in our darker times, your positive personality helped us through some tricky situations. Should we ever have to go down this path again, we would genuinely love to have you by our side."
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