Smith v Luton & Dunstable Hospital NHS Trust

In early 2000, the Claimant, then working as a Nurse for the National Blood Transfusion Service, began to experience sciatic pain in her left leg. She was accordingly referred to and was seen by a Mr. Pandit, an Orthopaedic Surgeon, at the Luton & Dunstable Hospital . Mr. Pandit recommended a discectomy of the L5/S1 disc. He expressly represented to the Claimant that this was an uncomplicated procedure and, indeed, did not warn of the risks. The discectomy took place on 2 nd October 2001 and was performed by Mr. Pandit. In the course of the operation, dural tear occurred and Mr. Pandit elected to deal with this by applying gel foam to pack and to seal the tear.

Post operative observations were recorded as being normal but, shortly after returning to the Ward, the Claimant experienced and complained to the nursing staff of pain in the lower left limb and numbness in the left foot. During the night of 2 nd October 2001/3 rd October 2001, the Claimant suffered urinary incontinence but was unaware that this had happened until she felt the wet bed beneath her.

The Claimant was seen by Mr. Pandit on the morning of 3 rd October 2001 . She informed him of the episode of bed wetting and the feeling of numbness and loss of sensation in her backside and her bladder. Mr. Pandit was reassured by the examination he carried out and the Claimant was discharged home.

Shortly after her discharge, she began to experience an increasing loss of sensation extending to the peri-anal area, together with the difficulty passing urine. She was concerned enough by these developments to call the hospital and report them. She was told by the hospital that she should contact her GP. She contacted the Deputising Service and informed them of the history, her present symptoms and her concerns. A Doctor from the Deputising Service duly attended the Claimant the same evening and advised that the Claimant's condition would resolve over the next two weeks and that she should contact her GP if her condition worsened or failed to resolve.

Concerned but, at the same time reassured, the Claimant continued at home with an increasing loss of sensation over the next couple of days until 5 th October 2001 when a District Nurse attended her and suggested that she return immediately to the hospital for a check up.

The Claimant therefore attended the A & E Department at the Luton & Dunstable Hospital where, following examination, it was recorded that she was probably suffering from Cauda Equina Syndrome. An urgent transfer was arranged to the Royal Free Hospital where the Claimant could undergo an MRI scan and further surgery to relieve the spinal compression.

Sadly, following the surgery at the Royal Free, the Claimant was left with substantial loss of sensation in the peri-anal area, loss of sexual function and double incontinence as well as reduced mobility. She was never able to return to her work as a part-time Nurse for the Blood Transfusion Service, a job which she had greatly enjoyed and very fulfilling having undertaken various extra courses such as Health & Safety and being the Union Representative.

Perhaps more significantly as far as the Claimant was concerned was the impact on her relationship with her husband. She relied on him for full care in the early stages following her discharge from hospital and this involved carrying some of the most intimate aspects of hygiene which they both found extremely distressing and which seems to have permanently affected their relationship. The case raised the issues as to whether or not it is appropriate to even contemplate the spouse being the main carer because of the fundamental shift in the matrimonial relationship which then occurs which the couple being carer and cared for as opposed to husband and wife.

Evidence was obtained for the Claimant from Mr. Jeremy Fairbank, Consultant Orthopaedic Surgeon and for the Defendant - Mr. Maurice-Williams. The Claimant's case was advanced on the basis that there was a lack of consent and informed consent because no risks were discussed with the Claimant and that, in any event, notwithstanding that the surgery itself was not performed negligently, that the aftercare was negligent in that there had been a failure to detect and act upon the Cauda Equina Syndrome.

The case was difficult, however, because of the inherent problems within failure to warn cases, notwithstanding the recent Health Board's decision which was actually published on the same day as the settlement meeting on this case. Moreover, the Claimant's evidence was that the Claimant would have had the pain and some mobility problems in any event. The nursing notes were also silent regarding the increase in Cauda Equina symptoms on the night of 2 nd / 3 rd October 2001 .

The Defendant's evidence was that there had been no failure to warn and that the Claimant would have had the operation anyway. There was no negligence during the surgery and any negligence after the surgery occurred too late to alter the outcome of the Cauda Equina Syndrome which in itself can cause long term difficulties even if spotted straight away.

Such were the problems with the evidence on the Claimant's case that, at one stage, Counsel felt that the case was unlikely to succeed. Fortunately, a few weeks later on 27 th February 2004 , the Defendants admitted breach of duty but denied that the negligence had caused all of the harm.

Both sides then sought to concentrate on the causation aspect and quantum.

Numerous attempts were made by the Claimant's team to settle the case without recourse to lengthy litigation because the process itself was having a detrimental effect on the Claimant and her husband.

Protective proceedings were issued on 28 th September 2004 .

The settlement meeting finally took place on 14 th October 2004 with both Counsel and solicitors in attendance. The main issues between the parties related to loss of earnings and care with the Defendants arguing that future employment was not impossible and that the Claimant required a lot less care than had been claimed but she would probably need help in accessing what was available locally.

The claim settled for £500,000.00.

This can broadly be broken down as follows:-

General Damages - £60,000.00
Past losses - £140,000.00
Future Losses - £300,000.00

Both sides agreed that with appropriate psychological support, the Claimant could be enabled to lead a much better quality of life and that the biggest limitation on her potential future was her own perception of her limitations.

In addition to a small allowance from the Defendants for psychotherapy, discussions took place with the Claimant regarding the possibility of future surgery to minimise the bowel incontinence and horrendous regime of bowel care which was the severest limit on the Claimant's life style and involved the most care for her husband.

It was accepted by the Defendants at the settlement meeting that the Claimant was unlikely to work in the future.