1 February 2016

Carol; the spinal fusion that did not work

Carol had a history of lumbar spondylosis, scoliosis and spinal stenosis.  She had had painful symptoms for about 10 years, and undergone treatments at hospital including a “lumbar decompression” but without relief. 

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.

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