A complicated claim
Post date: 26/10/2017 | Time to read article: 3 minsThe information within this article was correct at the time of publishing. Last updated 14/11/2018
Mr A, an orthopaedic surgeon, was approached by a claimant’s solicitors to provide an expert report on behalf of their client. He was advised that the claim related to alleged negligence in the conduct of an L4/5 spinal decompression and fusion with malposition of the pedicle screws, following which the claimant developed right S1 nerve root damage, causing right foot drop. Mr A sent the solicitors his CV – which set out his area of practice – as evidence of his suitability for the role, and agreed to provide the requested report.
In his report, Mr A criticised the conduct of the surgery. His opinion was that the hospital inappropriately allowed a specialist registrar to perform the operation unsupervised, that there was a failure to use an image intensifier and a failure to check the position of pedicle screws immediately postoperatively, resulting in delayed diagnosis of the malposition of the screws and permanent foot drop. A Letter of Claim was served on the hospital based on Mr A’s expert opinion.
In their Letter of Response, the hospital’s solicitors denied liability. They commented that Mr A “does not claim to have expertise in spinal surgery”. They advised that the operation had been performed by a locum consultant, an image intensifier was used and that foot drop is a recognised complication of spinal decompression and fusion, about which the claimant was warned preoperatively.
Proceedings were nevertheless commenced by the claimant’s solicitors. In response, the hospital’s solicitors submitted questions to clarify Mr A’s expertise in spinal surgery. When answering the questions, Mr A confirmed that he had never held a substantive consultant post in the public sector, that he had last performed spinal surgery 15 years earlier and that he had not operated at all in three years. He also stated that he had never performed complex spinal surgery and that he had not personally performed the operation in question, because of the high risks associated with it.
Following this, the claimant’s solicitors instructed a new expert. She agreed with Mr A’s original opinion that there was a failure to check the position of the pedicle screw immediately postoperatively and that there was a delay in making the diagnosis of foot drop. However, the expert also identified new areas of concern, namely that there was a failure to check the neurovascular status of the limb during the procedure, and that there were deficiencies in the consent that had been taken.
She concluded that, on the balance of probabilities, the neurological damage sustained would have been less severe with earlier diagnosis of the foot drop and subsequent correction of the underlying cause (malposition of the screws).
The claimant’s solicitors sought financial redress from Mr A for the increased costs incurred by their client in instructing a second expert and revising their claim. They alleged that Mr A was wrong to maintain that he had sufficient expertise in the field of spinal surgery, and to comment on the current public sector standards and operational procedures on the facts of this case. They pointed out that the hospital’s solicitors were quick to notice this weakness, as a result of which their client faced an Adverse Costs Order against him.
In his report, Mr A criticised the conduct of the surgery. His opinion was that the hospital inappropriately allowed a specialist registrar to perform the operation unsupervised, that there was a failure to use an image intensifier and a failure to check the position of pedicle screws immediately postoperatively, resulting in delayed diagnosis of the malposition of the screws and permanent foot drop. A Letter of Claim was served on the hospital based on Mr A’s expert opinion.
In their Letter of Response, the hospital’s solicitors denied liability. They commented that Mr A “does not claim to have expertise in spinal surgery”. They advised that the operation had been performed by a locum consultant, an image intensifier was used and that foot drop is a recognised complication of spinal decompression and fusion, about which the claimant was warned preoperatively.
Proceedings were nevertheless commenced by the claimant’s solicitors. In response, the hospital’s solicitors submitted questions to clarify Mr A’s expertise in spinal surgery. When answering the questions, Mr A confirmed that he had never held a substantive consultant post in the public sector, that he had last performed spinal surgery 15 years earlier and that he had not operated at all in three years. He also stated that he had never performed complex spinal surgery and that he had not personally performed the operation in question, because of the high risks associated with it.
Following this, the claimant’s solicitors instructed a new expert. She agreed with Mr A’s original opinion that there was a failure to check the position of the pedicle screw immediately postoperatively and that there was a delay in making the diagnosis of foot drop. However, the expert also identified new areas of concern, namely that there was a failure to check the neurovascular status of the limb during the procedure, and that there were deficiencies in the consent that had been taken.
She concluded that, on the balance of probabilities, the neurological damage sustained would have been less severe with earlier diagnosis of the foot drop and subsequent correction of the underlying cause (malposition of the screws).
The claimant’s solicitors sought financial redress from Mr A for the increased costs incurred by their client in instructing a second expert and revising their claim. They alleged that Mr A was wrong to maintain that he had sufficient expertise in the field of spinal surgery, and to comment on the current public sector standards and operational procedures on the facts of this case. They pointed out that the hospital’s solicitors were quick to notice this weakness, as a result of which their client faced an Adverse Costs Order against him.
Expert opinion
Mr A remained of the view that he had the appropriate expertise to report on the case, relying on the elements of spinal surgery in his training in general orthopaedic surgery and his efforts to keep up-to-date with developments in this area.
Medical Protection advised that he should seek to settle on the basis that whilst there was no suggestion that Mr A deliberately misrepresented his expertise, he did not make explicitly clear the limits of his knowledge and personal experience. Additionally, although he clearly stated an interest in spinal surgery outcomes, he did not advise that he had not carried out a spinal decompression in 15 years, nor did he advise that he had never carried out the decompression and fusion that was the subject of the original claim.
The matter was settled with Mr A’s agreement for a low sum and without admission of liability.
Learning points
- Be clear and explicit about the limits of your expertise to avoid misunderstandings. The GMC states in Good Medical Practice: “You must only give expert testimony and opinions about issues that are within your professional competence or about which you have relevant knowledge including, for example, knowledge of the standards and nature of practice at the time of the incident or events that are the subject of the proceedings.”1
- Your credibility is likely to be undermined if you are providing an opinion about an area of practice in which you have no (or no recent) practical experience.
- This case highlights the importance of having understanding and experience appropriate to the location of a claim (for example, private or public sector) in order to avoid making incorrect assumptions about personnel or protocols.
References
1. General Medical Council. Good Medical Practice. GMC 2013.
