On 23 March 1999, Kelly, aged 35, attended the A&E Department at Ealing General Hospital following the sudden onset of a tingling sensation in her left arm. The veins in her arm had also become very prominent.
Kelly was seen and examined by an SHO in A&E who concluded that Kelly had a musculoskeletal problem and advised Brufen and rest.
In fact, Kelly was suffering from axillary vein thrombosis probably attributable to an oral contraceptive.
The following day, Kelly described her signs and symptoms to a physiotherapist who diagnosed a blood clot and not a trapped nerve.
Kelly consulted her GP who diagnosed an axillary vein thrombosis and referred her back to Ealing General Hospital. After a delay of several hours she was admitted and anticoagulant therapy commenced.
Kelly was seen by a vascular surgeon on 7 September 1999 and he advised intravenous thrombolysis of a blockage of the left axillary vein followed by resection (i.e. removal) of her first left rib to prevent recurrence of the thrombosis.
He carried out the operation under general anaesthetic on 30 September 1999. However, instead of removing Kelly’s first rib he removed her second rib in error.
The first rib was therefore removed by way of a second operation later that day.
The surgery led to recurrent pain in the left pectoral muscles and recurrent aches and pains over the left posterior neck and shoulder muscles along with discomfort on the left shoulder and back, decreased sweating in the left axilla, a 5.5cm scar on the left axilla and restricted upper left chest function.
Richard Earle was instructed to pursue a vascular surgery negligence and accident and emergency negligence claim against Ealing General Hospital.
Proceedings were issued on 18 March 2002 supported by a positive report from a consultant surgeon. He was critical of the failure in the A&E Department to make the correct diagnosis and contended the delayed diagnosis had a marked effect on her loss of respiratory function.
In addition, the expert was highly critical of the decision to undertake surgery at all and critical of the wrong rib being removed and that a second operation took place when Kelly was not in a position to provide informed consent.
Richard Earle listed the case for trial on 6 March 2006. Following discussions between the surgeons (instructed by both parties), the defendant maintained its stance that the surgery was carried out appropriately and it was not unreasonable to mistakenly remove the second for the first rib.
On the morning of the trial the defendant made an offer of £75,000. Following negotiations at the Court door the case was settled for £125,000. The case was taken with the benefit of Legal Aid.