Abstract
Background
The Claimant, who was aged 60 years at the time of the incident, was admitted to Milton Keynes General Hospital for functional endoscopic sinus surgery for recurrent sinusitis and nasal congestion. The operation was performed on 3 April 2003, and the Claimant was discharged the following day with oral antibiotics.
On the morning of 5 April 2003, the Claimant unexpectedly sneezed, at which point his eye immediately began to swell, and so he returned to Milton Keynes General Hospital at around 09:00 hours that day for assessment. The Claimant was examined, and discharged with appropriate advice, and instructed to return if the problem did not abate.
Unfortunately, as the day progressed, the eye swelling worsened, and the Claimant re-attended Milton Keynes General Hospital, where he was re-admitted at about 15:30 hours. The ENT clinicians at Milton Keynes General Hospital were concerned about the Claimant's deteriorating condition, and they sought advice from ophthalmic specialists at Stoke Mandeville Hospital, who fall under the auspice of the Defendant Trust.
The ENT clinicians spoke with the ophthalmic registrar at Stoke Mandeville Hospital, who advised that the Claimant would probably need an urgent decompression, and that he should be commenced on oral Acetazolamide. The ophthalmic registrar also suggested that theatre space be allotted for the anticipated urgent decompression procedure. Stoke Mandeville Hospital also advised that a CT scan be performed, and that a consultant ophthalmic surgeon would attend the Claimant at Milton Keynes General Hospital that day.
The ophthalmic surgeon from the Defendant Hospital attended upon the Claimant at Milton Keynes General Hospital at approximately 17:00 hours on 5 April 2003. The ophthalmic surgeon noted a tense left orbit with a mild afferent pupil defect, and the CT scan showed air within the orbit. The ophthalmic expert liaised with the treating ENT consultant and directed that the Claimant did not need an urgent decompression procedure, and that he should be managed conservatively. The Claimant was transferred to Stoke Mandeville Hospital for observation and monitoring, together with treatment with intravenous antibiotics.
The Claimant was clerked into the Defendant hospital at approximately 20:25 hours on 5 April 2003. The following morning, the vision in the Claimant's left eye had deteriorated further and the Defendant's ophthalmic surgeon urgently decompressed the orbit under general anaesthetic and expressed air. Unfortunately, the Claimant had no vision in the left eye at this time.
The Claimant instructed solicitors to investigate a claim against both Milton Keynes General Hospital and Stoke Mandeville Hospital. Medical notes and records were obtained and independent expert evidence commissioned from both an ENT surgeon and ophthalmic surgeon. The medical evidence was such that a claim was pursued solely against Stoke Mandeville Hospital, on the basis of alleged negligence by their ophthalmic surgeon who attended the Claimant on 5 April 2003. A formal claim for psychiatric injury was not investigated on the Claimant's instructions.
The Claimant's position with regard to breach of duty and causation
The Claimant's position with regard to breach of duty and causation was as follows. The Claimant's independent ophthalmic expert had opined that when the Claimant had unexpectedly sneezed, he had forced air into his orbit, resulting in orbital emphysema (i.e. air in the orbit). Although air in the orbit is usually benign and self-limiting, causing only transient proptosis and diplopia (as the air can generally escape through the fracture sites as readily as it enters), if it cannot escape, then intraorbital pressure can increase. This can result in loss of vision, secondary to optic nerve, or retinal ischaemia. The Claimant's ophthalmic expert advised that in the Claimant's case, he was suffering orbital emphysema with visual compromise, which is an ocular emergency, requiring immediate decompression. In the Claimant's case, orbital decompression could have been achieved by either needle aspiration, canthotomy, cantholysis or orbital exploration with drainage of air. It was the Claimant's case on causation that had an urgent decompression procedure been performed on the evening of 5 April 2003, then on the balance of probabilities, the Claimant would have retained useful formed vision in his left eye.
The Defendant's position with regard to breach of duty and causation
The Defendant obtained their own independent ophthalmic evidence. The Defendant's position with regard to breach of duty and causation, was that the Claimant's optic damage had been caused by the development of acute orbital cellulitis (infection) which had caused permanent damage to the optic nerve during the late morning/early afternoon of 5 April 2003. The Defendant argued that even if the Defendant had performed an urgent decompression as suggested by the Claimant, then this would not have avoided the visual damage which the Claimant sustained as it resulted from infection. The Defendant further argued that air in the orbit is normally a benign phenomenon which resolves spontaneously without causing permanent visual loss and therefore does not require routine decompression. In addition, the Defendants argued that orbital cellulitis would explain the new signs and symptoms which the Claimant presented with at 15:30 hours on 5 April 2003. The Defendant argued that this condition is recognized to occur as a result of the spread of infection from the para-nasal sinuses and the air spaces in the nose (as sinuses normally contain commensal [non-pathological] bacteria in that location) and the force for driving of an inoculant of such bacteria into the orbit by sneezing could trigger such an acute infection. The Defendants also argued that the time course of the development of symptoms was also compatible with their hypothesis, and acute optic neuropathy is the recognized complication of orbital cellulitis, but not of orbital emphysema alone. The Defendants also pointed to the fact that although the Claimant had received systemic antibiotics, he developed a temperature and had an elevated white blood cell count and CRP, all of which are compatible with acute infection. The Defendants argued that the time course of the resolution of the orbital signs, but with the persistent optic nerve damage would also be compatible with a treated infection.
Progress of litigation
The Claimant served a Letter of Claim upon the Defendant, on the basis of matters described above. The Defendant's legal representatives served a letter of response denying liability, on the basis that air in the orbit is usually a benign phenomenon which does not require urgent decompression and that from the point of view on causation, the damage to the Claimant's vision had been caused by infection rather than air, and therefore an urgent decompression procedure would not have remedied the situation clinically in any event.
Proceedings were subsequently issued and served, and a Defence received denying liability on the basis as set out in the Defendant's letter of response.
As a costs proportionate measure, the parties' solicitors agreed that there should be a Stay of Proceedings in order that their respective ophthalmic experts could meet sooner rather than later to discuss the case on a without-prejudice basis. The parties' ophthalmic experts duly met and neither resiled from the position as set out in their respective reports.
Specific litigation difficulties
In prosecuting the case, the Claimant faced a number of significant difficulties in relation to both breach of duty and causation.
From the point of view of breach of duty, the medical literature appeared to support the fact that apart from the Claimant's case, there were no other reports of acute permanent visual loss flowing from orbital emphysema (i.e. air in the orbit). As such, and because air usually spontaneously resorbs, there would be some difficulty in arguing that at that time the Defendants' actions were unreasonable in not proceeding to urgent orbital decompression. In addition, because the Claimant only sneezed once, and no further air was forced into the orbit by sneezing or nose blowing, it would be difficult to explain a functional mechanism for the deteriorating clinical condition, which the Defendants argued was due to the development of the acute infection.
In terms of causation, the Claimant faced a number of problems. First, the Claimant's independent ophthalmic expert agreed that if the visual loss was found to be due to infection, then urgent decompression would not have altered the clinical outcome. In addition, the medical notes and records appeared to support the presence of infection. Finally, the Claimant's independent ophthalmic expert was unable to quantify the proportion of the Claimant's vision, which would have been saved had an urgent decompression been performed in any event, save to say that some useful formed vision would have been salvaged. The Claimant's ophthalmic expert also advised that it would be unlikely that any expert could put a percentage figure on the extent of visual loss that would have been saved, other than to say that some useful formed vision would have been maintained had the alleged negligence not occurred. Counsel was of the view that if neither of the independent ophthalmic experts were likely to be able to give the Court numerical direction on the extent of visual loss (and assuming the Claimant succeeded in relation to beach of duty), then a Court was likely to find that 50% of the vision would have been saved.
As part of investigating the claim, the Claimant's solicitors had obtained independent expert evidence from an ENT consultant, who agreed with the Claimant's ophthalmic expert, to the effect that the Claimant's clinical situation was an ocular emergency which required an urgent orbital decompression. The Court however, did not give leave to adduce expert ENT evidence, and this could not be agreed with the Defendant's solicitors. The Claimant's solicitors did however circumvent this problem, by obtaining a lay witness statement from the consultant ENT surgeon, who had liaised with the Defendant's ophthalmic expert on the evening of 5 April 2003. The lay witness statement from the consultant ENT surgeon confirmed the Claimant's ophthalmic expert's opinion, inasmuch as he explained from an ENT perspective that he felt that the Claimant's condition was a clinical emergency which mandated an urgent decompression.
It was also discovered during the course of proceedings, that the clinicians employed by the Defendant had actually written up the Claimant's case and submitted this for publication in the Archives of Ophthalmology. The clinical case report stated that the damage to the Claimant's vision was caused by air and that they would now recommend an urgent decompression of the orbit to allow air to escape in such circumstances. The litigation was somewhat unique, in that the Defendant's averred position for the purposes of the litigation was at odds with the position that the clinicians had put forward earlier when writing up the Claimant's clinical case. This issue was raised with the Defendant's legal representatives who argued that this evidence could not be used to support the Claimant's case as it was judging the Defendants retrospectively and that also after reconsideration of the case the clinicians involved believed that the Claimant's problem was in fact caused by infection notwithstanding their earlier publication.
Settlement
Further negotiations between the parties ensued and in view of the significant litigation risks that the Claimant faced, the claim was subsequently settled on the basis of a Part 36 Offer made by the Claimant on Counsel's advice for the sum of £15,000 plus costs.
Although settlement was agreed on a global basis, the Claimant's counsel's views on quantum and litigation risk were as follows. In terms of general damages, and on the basis that some visual compromise would have been likely to occur in any event, Counsel assessed general damages in the region of £17,000–£22,000. In terms of the claim for special damages, which related primarily to the costs of care and optician's costs, Counsel assessed the likely recovery of the Schedule at £7500. This gave a theoretical global value of the claim for saving 50% of useful formed vision in the region of £25,000–£30,000. Counsel's assessment of litigation risk was in the region of 50%, hence the Part 36 Offer at £15,000.