Clyde & Co’s Healthcare Team successfully defended Dartford & Gravesham NHS Trust in a claim concerning an alleged negligently performed total knee replacement (RBH v Dartford & Gravesham NHS Trust, unreported). Clyde & Co were instructed by NHS Resolution.
The knee replacement was performed by Mr M, Consultant Orthopaedic Surgeon, at the Darent Valley Hospital on 17 July 2013. The Claimant alleged that the tibial component of the implant was negligently misaligned causing him to undergo two revision procedures and that, as a result, he suffers from ongoing disability. It was accepted by the Defendant that the tibial component (‘TC’) was misaligned but that the misalignment was within acceptable limits. It was further contended that the cause of the revision procedures was low-grade infection.
Quantum was agreed subject to liability and the trial took place at the County Court at Dartford on 4 April 2022 over the course of one day.
The issues to be determined at the trial were threefold:
In relation to the first issue, the Defendant’s expert in his report and in the Joint Statement was of the view that the TC was misaligned by 4 to 5 degrees and that this was within acceptable limits. In his report and in the Joint Statement, the Claimant’s expert contended that the misalignment was 8 degrees and that this was outside of acceptable limits, the acceptable limit being plus or minus 3 degrees. However, under cross-examination the Claimant’s expert accepted that 5 degrees was “on the line” of the acceptable range.
In the Joint Statement the experts were asked to state at what angle the TC was placed and to “please discuss and illustrate on appropriate imaging how you have arrived at your opinion as to the angle”. The Defendant’s expert included in the Joint Statement the image with annotated lines showing that the angle was at 4 degrees of misalignment. The Claimant’s expert, on the other hand, did not take issue with the lines drawn by the Defendant’s expert but maintained that the misalignment was 8 degrees with no explanation as to how he reached that conclusion. The Judge was accordingly very critical of the Claimant’s expert’s evidence and accepted the evidence of the Defendant’s expert.
As the Judge accepted the Defendant’s expert’s evidence on the first issue, it was not necessary for him to consider the second two issues which were matters of causation. However, the Judge nevertheless went on to address causation by accepting that the most likely cause of the first and second stage revision procedures was low-grade infection and pointed to several entries in the records that suggested infection as the underlying cause, including the Claimant’s own treating surgeon who documented that he felt the Claimant had an infected knee.
This case demonstrates the importance of expert evidence and ensuring the experts instructed clearly explain and justify their positions, and that their evidence has a logical basis to it (as per Bolitho). The Claimant’s expert evidence fundamentally failed in this regard resulting in the claim being dismissed.
Mr Robert Cumming of 2TG was instructed on behalf of the Defendant.