A young woman attended her local medical centre to obtain the results of a blood test. At the time, she also complained of a blocked left ear. Her ear had been syringed by the GP seven months earlier for a similar problem. The equipment was checked before use and the left ear was syringed carefully. The patient did not complain of any pain during the procedure. On examination to check that the wax had been removed, the eardrum appeared normal and no bleeding was seen.
Two days later the patient consulted the doctor's partner as she was on duty at the time. There was evidence of an infection in the external part of the ear. Chloramphenicol drops, and amoxycillin were prescribed. There was no evidence of bleeding or perforation of the eardrum. The patient was seen two days later by a hospital doctor and, again, there was no evidence of perforation.
Two weeks later the patient saw an ENT specialist who diagnosed perforation and also noted a laceration or scratch of the external canal posterior wall. A swab was taken and resulted in the growth of pseudomonas.
Proceedings were brought. The MDU sought advice and obtained expert reports which confirmed that the GP's conduct had been correct. One expert said that the procedure:
" ….appears to have been in accordance with standard modern medical practice . . . Traumatic perforation of the tympanic membrane is associated almost always with intense pain and bleeding. This was not reported or noted in this case. . . It has been shown that her hearing is normal apart from a minor high tone inner ear hearing loss which is present in either ear. It is reasonable, I believe, to assume that this minor loss is not due to the syringing as it affects both ears equally…"
Another expert offered the following opinion:
"…I believe that the plaintiff was susceptible to otitis externa. The syringing did not cause any immediate trauma but led to an episode of otitis externa which did proceed to involve the middle ear cleft and caused the perforation. I do not believe that the syringing itself was the cause of the perforation or that there is any evidence that the ear syringing was performed incorrectly…"
In the light of these reports the MDU agreed with the member to defend the claim and the equivalent of £12,500 in compensation initially sought by the patient was rejected. The patient returned with a compromise offer of £7,500 which was rejected by the MDU.
At the hearing, the judge found no evidence of negligence in the performance of the procedure. He decided that the doctor had failed to warn the patient of the possibility of infection and perforation and in the judge's view the evidence showed, on balance, that the patient would not have undergone the procedure if so warned. He awarded her £4,000 in damages. This demonstrates the importance of ensuring that patients are warned of significant risks even for minor procedures.
A 26-year-old male social worker noticed "bilateral ear blockages" after a swim in a neighbour's pool. After three days he attended a general practice clinic. The trainee GP found both canals blocked by wax and recommended syringing, a procedure with which the patient was familiar.
As the right ear was being syringed the top end of the syringe suddenly separated from the barrel because of a crossed thread. The nozzle forcefully perforated the ear drum and caused intense pain, tinnitus and hearing loss. In addition to the antero-inferior perforation of the tympanic membrane, there was a corresponding laceration of the external canal. The patient underwent a series of ENT procedures and eventually repair was made by grafting the tympanic membrane. Throughout the subsequent years the tinnitus continued unabated. There was evidence of a persistent 50 dB conductive hearing loss throughout all test frequencies.
Four years after the incident proceedings were brought against the GP. It was alleged that as a result of negligent failure to check the equipment properly before the procedure, the trauma to the ear caused serious psychiatric sequelae including "anxiety, stress, irritation, depression and frustration". A very large financial claim in damages was made as a result of an alleged loss of earning capacity. It was the MDU's solicitors' view that the patient's claim was vastly inflated.
Psychiatrists examining the patient on behalf of the MDU provided reports which concluded that the main problem seemed to be one of persistent tinnitus and that from a psychiatric and psychological point of view the patient was capable of returning to work.
Seven years after the injury the matter came to a hearing. With the agreement of the MDU member, liability had been admitted before the hearing and its purpose was purely to determine the level of damages. Central to this was the assessment of the patient's alleged loss of earning capacity. During the trial, the patient proved to be a credible and formidable witness. He stated that as a result of stress and anxiety he was unable to cope in his usual employment and felt obliged to resign. His former employer also observed the change for the worse in his working capacity. The patient's psychiatrist gave evidence that the patient was suffering from an obsessive compulsive disorder. He described:
"a compulsion to order his personal apparel numerous times each day, that is, makingsure his pairs of shoes are straight, his clothes are parallel in the wardrobe, etc. He also spends up to 45 minutes in the shower each morning systematically washing each area of his body a number of times, soaping to a prescribed routine, rinsing to a prescribed routine. There are a number of other minor rituals and checking behaviour too numerous to mention. "
It was the patient's psychiatrist's opinion that this obsessive behaviour and the anxiety and depression that resulted from it were in a large part attributed to the syringing accident. Despite their earlier reservations, the psychiatrists who gave evidence on behalf of the defendant revised their assessments and agreed with the diagnosis of obsessive compulsive disorder. Not surprisingly, the judge then found that
"on the balance of probabilities... the obsessive compulsive neuroses was part of the damage caused to the plaintiff by the accident."
The judge added
"that the plaintiff's condition, caused by the accident did prevent him 'from holding employment other than intermittently and that presently he (was) not fit for employment but that given treatment and the settlement of the action he will ultimately be able to do so.".
In the assessment of damages which arose from this finding a very sizeable component for past and future economic loss was calculated. The total award given to the patient was almost £190,000.
Both cases produced unexpected results. When it appears that patients' expectations are excessive it is sometimes considered appropriate to let the court decide on the level of damages if attempts at settlements or offers of compromise cannot resolve the impasse. Such proceedings are not without risk to both sides.
This page was correct at publication on 01/07/2003. 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.