Dissatisfaction with surgery 8 years later

The conduct of the claimant and his legal advisers in the following case was distinctly puzzling as the alleged problem must have been apparent to the plaintiff on a daily basis and he first expressed his dissatisfaction with the outcome of a minor surgical procedure eight years after the operation.

A man of 42 with a meatal stenosis, was referred to a surgeon. A meatotomy was performed under general anaesthesia in a private hospital. At follow-up a week later the patient was anxious that the meatus was now too large. On examination the results of surgery appeared to be satisfactory, and the surgeon wrote a letter to that effect to the referring GP.

There was no further communication from the patient or his GP but some months later the surgeon received a letter from a consultant urologist at another hospital stating that he had seen the patient in order to give a second opinion. The urologist expressed the view that the surgeon had achieved "a reasonable result".

The surgeon's account remained unpaid and he received a letter from the patient's solicitors indicating their intention to pursue a claim for damages. The MDU advised the surgeon to pass on any further correspondence and dealt with the matter on his behalf.

Nothing further was heard until the surgeon contacted the MDU eight years later when he received a copy of a letter addressed to the medical records department of the hospital where the operation had taken place. This letter was written by a new firm of solicitors acting for the patient and it requested disclosure of the clinical records "as soon as possible and without reference to the doctor concerned". At this point the MDU's solicitors were instructed but it came as no great surprise that nothing further was heard from the patient's new firm of solicitors.

A year later a third firm of solicitors came on the scene and in response to their request the clinical records were released. Once again there was a pause of over a year (over ten years after the original operation) when a writ and statement of claim were served. The covering letter from the third firm of solicitors contained a most interesting paragraph which stated:

"We recognise that it is likely that your client's defence will plead that our client's action is statute barred. If so, it is our client's wish this matter should be ventilated – and if necessary decided – at the earliest possible stage so as to avoid the unnecessary expenditure of costs and, in particular, avoid the necessity of your client incurring the costs of obtaining expert evidence until after the resolution of any issue of limitations."

Where a patient has sustained damage the MDU would not wish to evade its responsibilities simply on the grounds of a legal technicality, but in the case under discussion the complaint itself appeared ill-founded. The date of "knowledge" was easily established and the delay of ten years before a writ was issued was not only unusually long but appeared to be completely unjustifiable.

Since it was the claimant himself who had raised the matter of limitation the MDU felt it right that the matter should be decided as a preliminary point and a hearing took place before a High Court Master. As a result of this hearing the plaintiff's action was dismissed.

The plaintiff's solicitors wrote to say that their client was minded to appeal but was reluctant to do so because of the costs involved and the solicitors invited the MDU to waive the court's decision on limitation and to enter into negotiation to settle their client's claim.

The MDU felt that as the claim lacked merit and as the limitation point had been heard at the suggestion of the plaintiff there was no good reason why he should not abide by the court's decision. The invitation to make an offer was declined and the MDU was informed that the case would not go to appeal. Two years later the MDU received a cheque in respect of the costs it had incurred in dealing with this frivolous piece of litigation and the file was finally closed just over 12 years after it was opened.

This guidance was correct at publication 01/01/2002. It 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.

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