We have recently settled a claim for a client who suffered serious and permanent loss of function as a result of severe damage caused to his ulnar nerve during a routine elbow arthroscopy.
Our client had retired from work as an IT consultant and enjoyed an active lifestyle. He noticed that he could not fully straighten his right arm at the elbow and began to experience pain in the joint when he tried to extend it, which inhibited his activities.
He sought advice from a GP who arranged an X-ray, which revealed some osteophytes (small bony spurs). It was thought these might be encroaching on our client’s elbow joint, limiting his ability to straighten his arm.
The GP referred our client to the Royal Berkshire Hospital where he was reviewed by a specialist physiotherapist. She confirmed the osteophytes and advised that they could be removed arthroscopically to improve the pain he was experiencing, although this would probably not help his range of movement. He was warned of the risk of temporary bruising to local nerves at the arthroscopy site, but was told this would resolve within a few weeks.
Surgery was booked for two and a half months later. On the day of the operation, our client was asked to sign a consent form for the procedure which recorded the intended benefit of improving discomfort. Risks of infection, incomplete cure, stiffness, nerve injury and that the joint may not straighten post-operatively were highlighted and he was also given a booklet that included risks relating to elbow arthroscopy of nerve injury – described as ‘quite common’ and affecting around 10% of patients. The booklet set out that the nerves almost always recover on their own over a course of weeks. Our client agreed to proceed on that basis and signed the form. He was never warned of any risk of severe or permanent nerve damage, nor was he advised that there were alternatives to elbow arthroscopy, including conservative management.
Immediately after the surgery, our client noticed that he had lost sensation in his fourth (ring) and fifth (little) right fingers. He described this to the nurse, who simply reassured him, and he was discharged home that day.
The loss of feeling continued over the following two weeks. When our client contacted the surgeon for further advice, he was told that he may have knocked or bumped the ulnar nerve during surgery, but was reassured that this would resolve and he need not worry.
Over the next week or so, our client felt he was losing power and grip strength, so attended his GP who wrote to the surgeon to explain that there had been no improvement in his nerve symptoms since the operation.
A month later, our client saw his surgeon for follow up and described the problems he was experiencing. The surgeon apologised for damaging the ulnar nerve during the arthroscopy and recommended that he see a nerve specialist for advice on how the problem could be treated. Following that consultation, the surgeon referred our client, explaining that the ulnar nerve had been injured during the arthroscopy and he was experiencing profound altered sensation and early ulnar nerve clawing, which was causing deformity in his little finger.
The nerve specialist saw our client quickly and carried out graft surgery to repair the ulnar nerve. While he did experience improvement following that procedure, he was left with very severe loss of sensation and function across the outer part of his right hand and fingers, which led him to suffer severe burns on occasion. He has suffered clawing of his right hand as well as a deformed right little finger which now protrudes and is at risk of amputation, either accidentally in the course of his normal activities, or as a surgical procedure to avoid traumatic amputation.
Our specialist clinical negligence team investigated the case, obtaining our client’s medical records and evidence on the standard of care he received from an orthopaedic surgery expert. The expert confirmed that our client had suffered very severe damage to the ulnar nerve at the time of the arthroscopy, which had been almost completely severed. It was not clear precisely how that damage occurred because the surgeon who performed the operation either had not realised at the time, or had not documented what happened. While our client was warned of the risk of nerve damage, our expert was certain that any damage to the ulnar nerve was different from damage to small, peripheral nerves at the operation site. The ulnar nerve is a major structure and the expert was clear that any reasonable surgeon exercising the required care and skill would locate the nerve and avoid causing damage to it during an elbow arthroscopy. In his view, damage to the ulnar nerve was not a risk that patients should be forewarned of because it is damage that should always be avoided when the surgery is acceptably performed.
We also involved a peripheral nerve specialist to report on the injuries our client suffered as a result of the damaged nerve and to explore whether any improvement might be possible. He advised the damage was permanent and highlighted the possibility of future amputation.
We wrote to the Royal Berkshire Hospital setting out the facts of this case and listing the breaches of duty in our client’s surgery. While the precise mechanism by which the nerve was severely damaged was unclear, the surgeon had already apologised to our client and confirmed in writing to both his GP and the nerve specialist that he had caused the damage. Despite this, the hospital denied that there had been any negligence in our client’s care. It admitted the ulnar nerve damage occurred during the arthroscopy, but argued that when our client signed the consent form, on which the risk of nerve damage was documented, he had agreed to the risk which then occurred.
The expert maintained that damage to the ulnar nerve is inherently different from peripheral – and temporary – nerve damage. Our client had not been warned that permanent and severe nerve injury could occur and in any case, such damage to the ulnar nerve was not acceptable in the arthroscopy he had undergone.
Given the hospital’s denial of any negligence, our team had to prepare and quantify court proceedings against the defendant trust to progress the case. We subsequently made an offer to attempt to settle the case.
In its defence, the trust maintained its denial of liability on the ground that any nerve damage was a recognised complication of the arthroscopy, to which our client had given his consent, and was therefore not negligent. Despite that denial, the trust made its own offer to settle the claim, for around £40,000 less than our offer.
Some discussion followed and it was the trust’s position that our client would not have recovered any range of movement even if the nerve damage had not occurred. We made clear that our client now needs help with some everyday tasks mainly because of the deformity in his little finger, and the trust tried to argue that he always would have needed this help because of the original problems with his elbow.
Over the next five months, there followed negotiations in which we made two slightly reduced offers, the last for £60,000. The trust produced no evidence to support its position, but increased its initial offer to £45,000, then £50,000, then £55,000. We made clear that our offer of £60,000 had been fair and represented a proper attempt to settle the claim. We re-stated the offer of £60,000, which the trust then accepted, nearly three months after it was first made. The trust has still not admitted any negligence.
This case unfortunately highlights how a defendant’s conduct in dealing with a claim leads to unnecessary increases in legal costs. The surgeon in this case had already apologised to our client for the damage caused. Had the trust taken a pragmatic approach and admitted negligence at an early stage, the costs of involving experts and protracted attempts to negotiate could have been avoided.