Settlement reached in hospital negligence claim, in spite of time limitation factors

3rd January 2018 by

Jonathan Austen-Jones, partner and head of Healys Medical Negligence, was first approached in 2014 to advise the Claimant as to whether he had a claim for medical negligence.

In March 2006 when he was then aged 15, the Claimant fell over whilst playing with a football in the street and injured his right elbow. He was taken to the Accident & Emergency Department at the County Durham & Darlington Hospital where a doctor examined him and noted the history and the Claimant’s complaint of pain in his right elbow. X-rays were taken. These were examined by the doctor who determined that they revealed no fracture. The doctor made a “working diagnosis” that the Claimant had sustained a soft tissue injury and discharged him after arranging for his arm to be placed in a sling and for him to be prescribed Ibuprofen. No advice was given to the Claimant about seeking further treatment or investigations.

The Claimant continued to wear the sling and avoided the use of his arm for many weeks but continued to experience pain and disability.

3 months later the Claimant attended his GP reporting that he had restricted mobility in his right elbow. The GP referred the Claimant to the Hospital’s orthopaedic clinic where a CT scan in fact showed that the Claimant had suffered a serious fracture to his right elbow which had healed incorrectly. This had led to the Claimant being left with a disabled and weak right arm.

Jonathan advised the Claimant that he had probably been the victim of negligent treatment and that his claim on that front had good prospects for success. Jonathan’s view was endorsed by an independent orthopaedic surgeon from whom Jonathan obtained a medical report in support of the claim.

The medical expert’s opinion was that the A&E doctor in March 2006 misdiagnosed the Claimant’s injury. He was wrong to hold then that it was a soft tissue injury and to treat it as such. The Claimant, in fact, sustained a significant fracture which required complex surgery. The delay in providing appropriate surgery had worsened the recovery and the surgery that was eventually performed was more substantial than would have been the case had the fracture been correctly identified when it first happened.

However, the biggest obstacle was the delay in starting the claim. As most people are probably aware, there are normally strict time limits for starting Court action and it was argued by the Hospital Trust’s solicitors that the claim should have been brought within 3 years of the Claimant’s 18th birthday (which would have been in November 2011).

Despite the difficulty with the limitation problem, Jonathan successfully managed to argue that knowing or suspecting that a fracture had not been identified in March 2006 does not necessarily mean that the Claimant would know or assume that the treatment then undertaken was more substantial than otherwise would have been the case, with a worse prognosis. It was these features which was the harm that was suffered by the Claimant. Jonathan argued that the Claimant had already suffered the fracture (by reason of falling in the street) before any medical negligence occurred.

Eventually Jonathan managed to persuade the Hospital Trust to settle the Claimant’s claim out of Court in August 2016 for a five figure sum.

The moral of this case study is that even if you think that you may be out of time for bringing a claim (and may have even been told this by another solicitor), it is always worth seeking the opinion of a solicitor and Jonathan will always be happy to speak to you without charge to advise you on the prospects of success if you find yourself in this situation.