The scene

An MDU member orthopaedic surgeon faced a claim over their management of a right acromioclavicular joint dislocation, following a patient's sporting injury. The member performed surgical stabilisation with ligament reconstruction with fibre wire, and the repair was protected by a right ACJ hook plate with locking screws. The patient suffered pain and restriction of movement after the initial procedure and the MDU member performed further surgery to remove the hook plate ahead of the scheduled six months at the request of the patient.

This operation revealed extensive scarring, which was considered to be a reaction to the initial fibre wire used for repair. All non-absorbable sutures were removed together with the plate, and the deltoid was repaired to the trapezius with strong vicryl instead of non-absorbable material.

The allegations centred around the decision making and performance of the later surgery, specifically the decision to remove the hook plate, and remove with stitching rather than a permanent form of graft.

The patient continued to suffer pain and limitation of movement and a third procedure was performed by another surgeon, which provided a satisfactory result.

The claim

In terms of causation, it was the patient's case that had the member performed the second surgery appropriately, the plate would have been removed after three months, followed by immediate full mobilisation. The patient would have then returned to sporting activity within two weeks.

Responding to the member's request for assistance in dealing with the claim, the MDU obtained expert evidence from an orthopaedic surgeon, who was supportive of the initial surgery but considered that the use of strong Vicryl alone to undertake an ACJ repair was inappropriate. In their opinion, performing a reconstruction procedure with the sole use of Vicryl for a revision acromioclavicular joint stabilisation was inadequate, and would probably not have provided enough strength if there was in fact greater instability than had been apparent at the time of the operation.

As a result of the unsupportive evidence from the expert, both parties entered into settlement negotiations. With the member's consent, the case was settled at £10,000 plus costs, without a formal response to the allegations or any admission of liability.

The allegations centred around the decision making and performance of the later surgery

Patient's costs

The MDU has been campaigning for fairer compensation for some time, with one aspect being the often disproportionate legal costs in comparison to the damages awarded. In this instance, the patient's initial legal costs were more than £30,000, which included the after the event (ATE) insurance premium claimed at almost £6,000.

The ATE premium is used to cover the patient's expert fees in the event that the claim is unsuccessful. In this case, only one expert was instructed by each party and the patient's expert fees were almost £3,000, but the ATE premium itself was almost double the total liability for expert fees.

Inflated costs such as those submitted in this case are seen often in clinical negligence cases, but recently the courts generally apply proportionality to claimants' legal costs more vigorously than under previous costs regimes of the past.

In this instance the court directly intervened and provisionally assessed the patient's costs at around half the original estimate. The court made very significant deductions given the nature and complexity of the case, which was settled swiftly and before any court proceedings were initiated. Despite initially disputing it, the patient eventually accepted the court's decision.

Although some cases are settled because the expert evidence is not supportive, we still work hard to reduce the costs of cases where legal costs are clearly disproportionate. Overall this was a very encouraging result for the defendants, and a good example of the court using its powers and taking a strict line on costs to ensure that they are both proportionate to the complexities of the case, while still allowing the parties access to justice.

This case study appears in the 2019 edition of Cautionary Tales.

This article was correct at publication on 27/08/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.