Type of Injury:
Deane-Cutler v Frimley Health NHS Foundation Trust
Damages for pain, suffering and loss of amenity:
Total damages agreed:
££49,000 (£25,407.75 net of CRU)
Age at date of incident:
Date of incident:
24 August 2010
Date of settlement:
Carol Maunder, Dutton Gregory LLP Solicitors, Bournemouth
John Gimlette, 1 Crown Office Row, London
Rachel Eardley Capsticks, London
Submitted for publication by:
On 18.03.10 the Claimant, who had a history of back problems, was admitted for surgery - an anterior cervical disectomy and fusion at C4/5, C5/6 and C6/7. The Claimant made an uneventful recovery and was discharged home on 22.03.10.
In July/August 2010 the Claimant developed staphylococcal septicaemia, a systemic illness characterised by tiredness and night sweats. The Claimant had a follow up appointment with the Defendant on 24.08.10. She was experiencing neck stiffness and dysphagia, as well as a second focus of infection at the operative site, an evolving thoracic epidural abscess at the T5/6 level. The Defendant ordered x-rays which showed a large preverterbal soft-tissue swelling extending from C3 to C7. The Claimant was told to return for a review 3 months later.
The Claimant was then, however, admitted to hospital as an emergency after she collapsed on 29.08.10. She had suffered with an increase of immobility leading to the collapse, was suffering from pain in both hips and had pyrexia of unknown origin. The clinical impression was of sepsis. Attention focused on the hip, her neck-related symptoms were ignored.
On 03.10.10 an MRI scan revealed a cervical prevertebral abscess at around the level of the cervical fusion and an extradural collection extending from T3 to T8 level. The Claimant had major surgery which included a drainage of the epidural abscess, removal of the trinica plate, a thoracic laminectomy and also the C4-7 metalwork was removed and the abscess was drained and removed. After the surgery, the Claimant started to make a recovery. However this was slow and her rehabilitation was only partial. On 20.12.11 the Claimant had a further procedure to drain a cervical abscess, remove all three trabcular metal cages and had autologous bone grafts in all three inter-vertebral disc spaces.
Breach of Duty
- Failure to recognise that the Claimant had a significant neck problem.
- Failure to appreciate that a large prevertebral collection was increasing pain and dysphagia 5 months after surgery, in association with fatique and sweats, which warranted further immediate investigation.
- Failure to consult a senior colleague to discuss the plain x-rays and to admit the Claimant for a systemic and objective appraisal.
- Failure to undertake a blood test. It was the Claimant’s case that the results would have come back positive for infection.
- Failure to diagnose the infective process in the spine and immediately commence antibiotics.
29.8.10 to 2.9.10
- Failure to appreciate that the cervical spine was a major force of sepsis.
- Failing to consider the significance of the Claimant’s new symptoms of thoracic paravertebral pain and spasm, with giving-way and difficulty moving both legs.
- Failure to consider the advice of the orthopaedic, radiology and microbiology specialists that the spine required immediate investigation as a likely focus of sepsis.
- Failure to consider that the Claimant had had major neck surgery and that the spine ought therefore to be fully and properly investigated as a possible source of the infection.
- Failure to undertake immediate further and more sophisticated imaging of the cervical and thoracic spine.
- Failure to consult a senior orthopaedic specialist.
- It is likely that the cervical abscess, although very large would not have caused any local neurological damage and was acting as a septic reservoir from which a distant faster developing focus spinal abscess formation arose in the thoracic spine.
- But for the breach, the Claimant would have been treated with broad spectrum antibacterial therapy. This would have arrested or slowed the development of the infection preventing it from reaching the critical point of spinal cord injury.
- As a result of the delay the Claimant suffered permanent neuropathic pain due to the untreated inflammatory thoracic myelopathy. But for the delay she would have expected to recover from the latter.
29.8.10 to 2.9.10
- But for the breach of duty the essential diagnosis would have been made by 31.8.10 at the latest.
- Had the Claimant been appropriately treated by surgical drainage as well as antibiotics by 1.9.10, 3 days earlier than actually happened, the treatment would have reversed the evolving thoracic myelopathy.
- Due to the delay, instead of being reversed the compressive thoracic myelopathy was allowed to evolve further until 4.9.10.
- Although the Claimant underwent a surgical decompression of the epidural abscess on 4.9.10, it was too late. The inflammatory process at T5/6 had reached the point of inflicting structural damage to the spinal cord/nerves/blood supply.
- As a result the resolution of the thoracic myelopathy thereafter has been slow and only partial.
The Claimant’s injuries were as follows:-
- Persistent neuropathic pain and unsatisfactory sphincteric control.
- Persistent neuropathic sensory disturbances in both legs. Impairment of balance and gait.
- Weak right leg (causing falls and further injury), leg spasms and a burning sensation in legs.
- Thoracic girdle pain which causes abdominal and thoracic disturbance and tightness across the abdomen and girdle.
- Increased urgency regarding bowel function.
- Altered bladder function resulting in regular accidents and the Claimant having to wear a pad.
- Dependant on a mobility scooter when she goes out, leading to difficulties in walking her dogs, house work and gardening.
It was conceded that the Claimant would in any event have suffered a number of problems, none of which would have been significantly disabling, namely osteo-arthritis (causing minor pain and stiffness in her neck and lower back, and claudication-like lower limb pain); wasting of the right thigh; numbness over the left pectoral region. She had also had a left hip replacement in June 2011, having had a right hip replacement in 2009.
Quantifying the Claimant’s claim was difficult in trying to distinguish between the Claimant’s existing disabilities and the attributable injuries.
Past losses were claimed in relation to travel, loss of earnings, care and miscellaneous items. Future losses were claimed again in relation to travel, loss of earnings and care. There was a significant CRU deduction in relation to DLAC and DLAM of £23,592.25 in respect of the Claimant’s pre-existing problems which were not insignificant. Total special damages were estimated at £31,000.
This was a difficult case in relation to both the evidence and quantifying the claim. The Claimant’s medical expert stated it was the most complex and difficult case in which he had ever been involved. The case was contested throughout.
Proceedings were issued on 29.5.14 due to the impending limitation date, with a Defence served on 17.10.14. The case was allocated to the multi-track and listed for a Costs Case Management Hearing on 27.4.15. Cost budgets were filed by the parties. Proportionality was likely to be a problem. On the basis of the evidence that no admissions were made by the Defendants, and taking proportionality into account counsel advised that the value of the claim should be apportioned at 60% based upon the litigation risk of 40%. The claim was settled on 20.2.15 for £49,000 (£25,407.75 net of CRU).