Abstract
Background
The Claimant had injured his knee while playing football, and after physiotherapy and arthroscopic assessment, he was placed on the waiting list at the Defendant hospital for an anterior cruciate ligament (ACL) reconstruction operation.
The ACL reconstruction operation was performed on 13 November 2003, when the Claimant was aged 22 years. The procedure undertaken was a patellar tendon bone ACL reconstruction, which involved harvesting the middle third of the tendon between the kneecap and the shinbone, together with a block of bone at either end to replace (or substitute) for the non-functioning ACL. The procedure was undertaken through a short medial arthrotomy, rather than arthroscopically.
The Claimant was in significant pain following the operation, and was discharged from the Defendant hospital on 16 November 2003.
The Claimant remained symptomatic, and at the three-month postoperative check-up, he reported that his knee was still painful and swollen, and he had a lack of feeling on one side. The Claimant also reported that his affected knee would occasionally ‘click’ and this would be associated with a sharp pain. The Claimant was advised to continue physiotherapy for a further month, and engage in a phased return to work, as his symptoms would permit.
The Claimant did not believe that the physiotherapy he was receiving from the Defendant hospital was benefiting him, and so he sought private physiotherapy treatment. The Claimant did not show the progress that the private physiotherapist had anticipated (as the Claimant was still reporting pain, swelling and episodes of the knee giving way) and so, he therefore advised the Claimant to obtain a further MRI scan, which the Claimant did on a private basis.
The Claimant arranged for the MRI scan to take place at the Defendant hospital on a private basis. The MRI scan indicated a cruciate ligament deficiency. The Claimant subsequently sought a second orthopaedic opinion, on a private basis, which confirmed that the tunnel had been placed anteriorly on the femoral side, such that the operation was described as effectively being ‘doomed to failure’.
The Claimant underwent a second revision ACL reconstruction on a private basis. The procedure was performed using hamstring tendons on 30 March 2005, when the Claimant was 24 years old. The Claimant subsequently made an uneventful recovery, achieving a functionally stable knee for both everyday activities and for the purposes of playing football.
The Claimant instructed solicitors on 4 January 2005, to investigate a potential claim against the Defendant hospital. Medical notes and records were requested and independent orthopaedic evidence obtained.
The Claimant's position with regard to breach of duty and causation
The Claimant's independent orthopaedic expert opined that the Claimant's original reconstruction operation had been carried out negligently, in that the femoral tunnel had been negligently positioned, inasmuch as the tunnel was placed grossly anteriorly; this had caused the procedure to fail, in that the knee remained unstable, necessitating the further reconstructing procedure performed on 30 March 2005.
The Defendant's position with regard to breach of duty and causation
The Defendants argued that the tunnel was not negligently positioned at the time when the original reconstruction operation was performed, and averred that the failure of the graft was due to an entirely independent, and later occurring non-negligent event.
Progress of litigation
A Letter of Claim was served upon the Defendant, on the basis of the Claimant's position with regard to breach of duty. A Letter of Response was received denying liability, on the basis of the Defendant's position with regard to breach of duty and causation.
Proceedings were issued protectively to preserve the Claimant's position due to the imminent expiration of the limitation period, and subsequently served upon the Defendant's legal representatives.
During the course of prosecuting the claim, it was discovered that there existed a DVD showing the performance of the ‘second’ reconstruction operation conducted on 30 March 2005. This visual evidence was sent to the Claimant's orthopaedic expert who reviewed that material, and confirmed that this contemporaneously demonstrated the negligent placement of the tunnel in the original reconstruction operation, on the basis that the second surgeon was able to place the reconstruction graft in ‘virgin territory’, which he would not have been able to do if the original graft had been correctly positioned. The Claimant's independent orthopaedic expert's comments and the DVD were disclosed to the Defendant's legal representatives.
The Claimant's claim was assessed on the basis that the orthopaedic evidence indicated that the primary benefit of the ACL reconstruction was to achieve stability in the knee, rather than to relieve pain, and any additional problems or pain which the Claimant may have experienced in the knee were on balance due to the nature of the index injury itself and/or general wear and tear rather than due to any breaches of duty of care.
A Part 36 Offer was put to the Defendant after Counsel's advice, and the claim was ultimately settled prior to the service of a Defence for the sum of £15,000 plus costs.
The Claimant's solicitor's assessment of quantum was made up of approximately £6250 based on the need for an additional revision surgery. There were no long-term sequalae as a result of the alleged negligence. Special damages included approximately £6500 relating to the costs of the Claimant's private medical treatment with the remainder relating to limited claims for both loss of earnings and care.