The MDU successfully defended at trial a claim against a consultant orthopaedic surgeon in respect of alleged failure to diagnose avascular necrosis.
The patient was referred to the surgeon, an independent practitioner, by her GP with severe back pain and sciatica with radiculopathy. She saw him on a total of six occasions and also periodically wrote to him to update him on her progress.
By the time of the sixth consultation, the patient had reached the level of her private medical insurance cover. The surgeon suggested that she return to see him as an NHS patient and, in particular, investigate newer symptoms she had recently complained of that potentially related to her hips.
The patient thereafter attended her GP who, due to PCT constraints, could not refer the patient back to the same orthopaedic surgeon who had been treating her. She was eventually seen six months later by an NHS orthopaedic surgeon. By this time the patient's right hip had collapsed as a result of avascular necrosis and she underwent a right hip replacement the following month.
In her claim for clinical negligence, the claimant alleged that the private orthopaedic surgeon had failed to properly diagnose and treat her hip condition.
At trial, it became clear that although the claimant argued in evidence that her symptoms had deteriorated, the contemporaneous medical notes and the correspondence sent to the surgeon by the claimant (all kept in her clinical file) described a marked improvement in her symptoms following epidural treatment.
It was only at the sixth and final consultation with the surgeon that the claimant complained of hip pain and difficulties with walking. As she had by then exhausted her private medical insurance cover, the surgeon recommended that she should be referred via the NHS for further investigations.
Liability was denied throughout the history of the claim and the case was brought to trial. In his judgment, the judge commented that the claimant showed a tendency to view events subjectively, and with the benefit of hindsight. He concluded that her opinions on the merits of the case had coloured the evidence she gave.
He considered it likely that the claimant did have some symptoms, although not to the extent that she claimed. The judge concluded that there could be no finding of lack of care in the surgeon's treatment during the period alleged by the claimant.
The claim was therefore dismissed and the member successfully defended.
Senior Claims Handler
'This claim against me and my professional conduct came out of the blue. The patient had presented with a severe back situation and radiculopathy and had responded very well; she even wrote and thanked me.
'In the end, when her back and leg pain had settled, she complained of hip joint symptoms, but had run out of insurance cover and I suggested she saw me on the NHS. That never happened.
'The action against me started two years after I last saw her, and the final Judgement came in almost four years later. It was a gruelling and unpleasant experience. It couldn't have been defended without diligent record keeping (including all of the claimant's letters to me).
'I would have found the process unsustainable without the support of the MDU and the legal team they instructed. All of them were totally honest with me and diligently warned me at the start how long and hard it would all be.'
This page was correct at publication on 17/02/2016. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.