On the recommendation
of her orthopaedic specialist, she had a procedure known as “lumbar
instrumentation, decompression plus fusion”.
This required the insertion of metalwork into the spine with bone
grafting. These operations lead to
fairly intense pain but it was expected this would resolve after about 3
months. When it did not, further films were taken which revealed that one of
the screws inserted in the operation had fractured. Revision surgery was therefore undertaken,
four months after the original operation and the fractured screw was removed
and replaced with an additional strengthening rod inserted. Carol has never been free of pain but the new
screw has not failed. Carol was left
with a claim for about six months of fairly serious additional pain caused by
the failure of the screw. Was it a
defective screw (in which case it would be a product liability claim) or was
the clinician negligent in the way the screw was selected, inserted and relied
upon?
In claims of this
type, the claimant will generally sue both the manufacturer and the health
authority in the knowledge that she has potentially a good case against one or
other of them. It may not become clear
until after proceedings have started who (if either) is more likely to be found
liable. As long as the decision to sue
both was reasonable, the unsuccessful defendant is likely to be ordered to bear
the costs not only of the claimant but of the successful defendant.
Expert evidence to
prove a defective medical component is extremely specialised and
expensive. Claims of this nature are
also often very prolonged and hard fought.
Carol was in her 70s and working part time and so it was a tactical
decision, taken early on, to make proposals for settlement to the manufacturer
prior to instructing an expert, setting out Carol’s claim and offering to
settle for a proper proportion of that, allowing for potential arguments about
why the fracture of the screw happened.
Fortunately, the
manufacturer saw the sense of this and agreed an overall settlement which
enabled Carol to recover just over £11,000 for the six months additional pain,
a loss of part time income when she was unable to work and the gratuitous care
and help provided by her husband during the period of her disability.
The manufacturer also
paid the bulk of Carol’s costs. She might have recovered more if a trial had
found in her favour, but of course she might have lost if fault could not be
proved on the part of either the manufacturer or the clinician. And of course
the case might have taken years to come to trial.
