Clyde & Co achieve successful trial defence of long running orthopaedic claim

We report on a case which we have recently defended to Trial, resulting in the Claimant’s claim being dismissed in full. The case highlights the high burden that the Claimant has in clinical negligence claims and if they cannot demonstrate clear reasons as to why the Defendant’s expert opinion is not reasonable, responsible and logical, the claim will not succeed.

The Facts

We were instructed to act for a private orthopaedic surgeon, who had performed a SLAP (a tear to the labrum tissue in the shoulder joint) shoulder repair in July 2013. The claim centred on whether there had been negligent placement of anchors used during the repair, and whether there were delays returning the Claimant to theatre when he was reporting ongoing stiffness. In the event, the Claimant was seen by a second opinion surgeon, Mr L, who advised that there was a visible foreign body in the shoulder joint and that two of the anchors holding the repair were misplaced.

The claim was robustly defended throughout, even in the face of lengthy and detailed Part 35 questions asked of the Defendant’s experts.

The Judgment

The Judge dismissed the claim on all counts. 

The Claimant relied on Mr L as a factual witness. The Judge was critical of the attempt to adduce opinion evidence from the factual witness, when the opinions that were being advanced at Trial were not evidenced as opinions that the surgeon held at the time of treatment. His contemporaneous medical records did not support the suggestions he was making within the context of the litigation. 

The Claimant relied on expert radiology evidence from Dr Jonathan Spratt and expert orthopaedic evidence from Mr Ronald Dodenhoff. The Defendant relied on expert radiology evidence from Dr David Wilson and expert orthopaedic evidence from Mr Iain Packham. 

The Judge found that the Claimant’s radiology evidence appeared to be based on a misunderstanding as to the technique used for the performance of the SLAP repair. Dr Spratt accepted that in the real world, he would have the assistance of an MDT and ability to talk to the surgeon. However, he still maintained that despite the lack of this information, he believed that there was evidence of negligent placement of the anchors. In addition, whilst the Defendant’s expert (Dr Wilson) was prepared to accept the limitations of imaging in this type of case (and that he would ultimately defer to the orthopaedic surgeons) the Claimant’s expert was unprepared to make similar concessions. The Judge found Dr Wilson to be more credible.

In respect of the orthopaedic evidence, the Judge also preferred the Defendant’s evidence of Mr Packham. The Judge felt that the reliability of Mr Dodenhoff’s opinion was uncertain given that he had moved his position on a number of issues from his first report. The Judge was concerned that Mr Dodenhoff had been quick to adopt in his first report that an anchor was not inserted properly but it transpired that this was based entirely on the opinion of the Claimant’s radiology expert and not something which was his own opinion or that there had been any direct evidence in the claim to support.

Conclusion

This is a matter which had been ongoing for a significant number of years and which caused the Defendant considerable distress and worry. 

The Claimant had maintained his original allegations throughout despite the fact that concessions had been made during the course of the claim. Despite raising extensive Part 35 questions of the Defendant’s experts, and receiving detailed responses, the Claimant gave no ground in conceding any of the allegations or provide any reason as to why the Defendant’s expert evidence was not logical and representative of a reasonable and responsible body of opinion. The apparent unwillingness of the Claimant to recognise that the Defendant’s expert opinions were in keeping with a reasonable body, resulted in the case being unnecessarily pursued to Trial.

The Judge was clearly impressed by the Defendant’s expert evidence and the factual evidence provided by the Defendant himself. We were pleased to have been able to provide the support and assistance to the Defendant throughout this case to secure an appropriate vindication of the actions of, in the Judge’s own words, a dedicated professional surgeon.