Most of the time the medical treatment and advice provided by GPs and hospitals to their patients is of a high standard. However, when an acceptable standard of care is not provided the results can be devastating and can lead to months, if not years, of chronic pain and suffering.
Consequences of medical negligence
The consequences of medical negligence can result in ongoing loss of income and can leave the patient in need of long term care and assistance from friends and family.
Do I have a claim?
If you believe you have grounds for a medical negligence claim, please do not hesitate to get in touch with us. Our initial advice is always free and we will be honest with you about your chances of succeeding with a claim.
If we think your grounds are strong, we will guide you through each step of the medical negligence claim process and provide you with clear, well informed advice throughout.
Does it matter where I am based?
Although our medical negligence solicitors are Bristol based, it doesn't matter if you are not.
There is no longer a need for you to have a local solicitor for your medical negligence claim. Much of the correspondence is instant and does not require face to face contact.
If a face to face meeting is required, we are able to send representatives to come and see you and if a personal visit with your solicitor is necessary this can and will be arranged.
Medical professionals and institutions are expected to adhere to the same standards throughout the country. A doctor from Land's End will be expected to perform to the same level as a doctor from John O'Groats.
The necessity, therefore, of a local solicitor for a Medical Negligence claim is arguably obsolete.
Read our Case Studies to see how we have helped other people.
Contact our team to discuss your potential claim by email or call 0117 929 0333
Medical Negligence FAQs
Why do medical negligence claims take so long?
At the outset of any medical negligence claim, whether against a hospital Trust, a private surgeon, a GP or a dentist, the solicitor conducting the case on behalf of the Claimant should provide their client with a realistic timeframe for completion of the case. This timeframe will be based upon the presumption that the case is successful (which is by no means guaranteed).
Providing this time estimate at such an early stage in the case is, as one might suspect, not an exact science by any means, as there are so many unknown variables at that stage. However, it is important that one’s clients are at least clear from the outset that the chances of their claim being “done and dusted” within 12 months (or even 18 months) are slim to downright remote.
If (and it’s a big “If”) there is a typical medical negligence case, and even if liability is admitted relatively early one in the matter, then the claimant is likely to still be looking at approximately 2 years before the case is concluded. This can be for a variety of reasons including:
- The length of time it takes to obtain the client’s medical records - this is typically 8 to 10 weeks but it can be longer, and often updating sets of records are required during the course of a claim.
- The availability of an independent medical expert (instructed by the claimant’s solicitors) to provide a liability report.
- Whether or not the claimant has ongoing, but potentially non-permanent symptoms which preclude settlement until the prognosis period (as advised by the independent expert) has elapsed.
If one then factors into the above calculation a denial of liability by the defendant, then the timeframe for the case can reach 3 or even 4+ years because, for example:
- The defendant will no doubt wish to obtain its own independent medical evidence.
- With the availability for 2 or more parties’ experts and barristers to consider (not to mention lay witnesses including the claimant), the Courts may struggle to list the case for trial for many months after the parties are ready to proceed.
So, the route to compensation arising from medical negligence is often a long one, but one that is often worthwhile and, moreover, very necessary for many victims of medical negligence who have suffered life-changing injuries. In addition, at Burroughs Day we will always keep our client’s fully updated as to the progress of their claim at regular intervals, even if there is nothing very much to report, and we do our absolute best to make the whole process as stress free as possible.
Contact our team to discuss your potential claim by email or call 0117 929 0333
What is Acute Kidney Injury?
The recent NHS commissioned study which concluded that thousands of patients are dying each year in our hospitals due to undiagnosed and untreated kidney problems has understandably caused a great furore within the media. To the lay person it seems incomprehensible that NHS patients are dying of Acute Kidney Injury because they are not being given sufficient fluids, but this study (which is co-authored by a Consultant renal physician as well as Insight Health Economics) makes clear that this is exactly what is going on.
So what is Acute Kidney Injury, or AKI?
Acute Kidney Injury is the term used to describe a loss of kidney function that sets in over a very short period of time (ie a few days). This is as opposed to Chronic Kidney Injury which develops over a period of many months or indeed years, and which may not lead to any symptoms for the sufferer until the latter stages of the condition.
There are various different causes of AKI, but here we are concerned with the cause chiefly referred to in the NHS study, namely dehydration brought on by a lack of water/fluids.
A lack of water intake can lead to a significant decrease in the amount of blood getting to one’s kidneys. If one’s kidneys do not receive enough blood (a condition known as Renal Ischaemia), then the kidneys will stop functioning properly and, ultimately, start to fail.
How can this condition be left undiagnosed and untreated?
A failure in hospital nursing care that leads to a patient becoming dehydrated should not be happening, even taking into account the fact that hospitals have to treat a great many elderly and/or otherwise vulnerable patients. However, actually making a diagnosis of Acute Kidney Injury is not as completely straight forward as one might think.
A diagnosis is usually based upon blood test results which themselves may take a few days to come back from the laboratory (unless requested as an emergency), and by then the patient’s condition may have worsened and the kidney damage caused. In fact, there is no guarantee that the blood tests will indicate AKI at all, as there is a delay of approximately 24 hours between one’s kidneys ceasing to function , and this being shown up on a blood test. However, there are other tests that can and should be carried out to assist with a diagnosis.
In addition, much can depend on the symptoms being displayed by the patient. Nausea, weakness, vomiting and muscle cramps are all indicative of possible AKI. Nurses and doctors should also take into account the age of the patient, the patient’s prior medical history and what drugs that patient is already taking. For example, a diabetic patient above the age of 70 years who has been taking ibuprofen (known to be harmful to kidneys) for a prolonged period, and who is displaying signs of dehydration should clearly be treated as a medical emergency.
- Acute Kidney Injury is a potentially life-threatening condition that needs to be treated urgently if long term complications are to be avoided.
- Nursing staff ought to be well aware of the risk of Acute Kidney Injury to their patients as a result of dehydration, especially where the patient is elderly; has other long term medical problems; is suffering from some sort of infection and/or has recently undergone surgery.
- A failure by a hospital to provide a patient with adequate fluids so as to keep them properly hydrated is likely to be negligent.
If you or someone known to you has suffered Acute Kidney Injury whilst in hospital and you would like some further advice from a medical negligence expert, then please contact us today and ask to speak with a member of our medical negligence team.
What are the Symptoms and Signs of Kidney Disease?
Symptoms brought on by deteriorating kidney function can be quite general or alternatively can be specific to the type of kidney disease that a patient is suffering from. More often than not it can be a combination of the two.
- Itchy skin
- Shortness of breath
- Muscle cramps
- Pain in the area of the kidneys (ie lower back; either side of the vertebral column)
- Blood in the urine
- Swelling of the face and/or feet
The above lists identify the most commonly displayed symptoms of kidney disease that the patient can see and/or feel. However, what about when you go to see your GP and a specimen of blood is taken and sent away for testing in a laboratory. What should your GP particularly then be looking out for in the test results?
Raised sodium or potassium levels: One of the kidneys’ functions is to maintain the right amount of these so called “electrolytes” in your blood stream. If, therefore, your blood test indicates that the levels are higher than would be considered normal, this indicates that you may have a kidney problem.
Raised Urea levels: Urea is the name given to the substance produced when the body breaks down protein from the food that we eat. Given that one of the most important functions of the kidney is to process urea, if the urea levels in your blood are shown to be high, this is another indicator that your kidneys are not doing their job properly. Further investigations should then be arranged by your treating doctor.
Your GP should also be concerned with blood pressure, especially where there is a suggestion (eg from the presence of any of the above symptoms and signs) of kidney disease. High blood pressure is another indicator of potential kidney disease.
The longer that high blood pressure goes untreated (perhaps as a result of a failure by your treating doctor to recognise the problem) then the greater the risk of further damage to the kidneys being caused.
A significant delay in the treatment of kidney disease by your treating doctors when faced with a combination of the above symptoms is likely to represent negligent medical treatment.
Please contact John Gomersall in our medical negligence team if you have any questions with regard to this article or if you believe that you or a loved one has suffered as a result of negligent medical advice.
What is Transient Ischaemic Attack (TIA) and what are the treatment options?
Whilst many people have heard of stroke, many people have not heard of TIA, which stands for Transient Ischaemic Attack, otherwise known as a ‘mini stroke’.
A TIA occurs when there is a temporary lack of blood supply to parts of the brain due to a blockage, which means there is also a lack of oxygen to the brain. As a result of this lack of oxygen, symptoms similar to those of stroke happen. These symptoms are:
- The sufferer’s face and/or eye and/or mouth may droop on one side. The sufferer may also be rendered incapable of smiling.
- The sufferer may have a problem lifting his or her arms, or holding them up due to feelings of numbness or weakness.
- The sufferer may sound different when they talk and their speech may be slurred.
A helpful way to remember these symptoms and what to do in an emergency situation is to think of FAST.
F is for Face and the drooping caused by a TIA.
A is for Arm weakness or numbness.
S is for Speech and slurring
T is for Time as it is crucially important when these symptoms happen that you seek urgent medical attention by dialling 999, as it is an emergency.
If the sufferer’s symptoms last for less than 24 hours then a TIA will be diagnosed. However, if they persist for longer than 24 hours then a stroke will be the likely diagnosis. Swift treatment following a TIA will help to reduce the chances of any further TIAs and will also help to prevent the likelihood of a full stroke. Without proper treatment the sufferer has a 10% chance of suffering a stroke within a month. Your treatment will to a great extent depend on your age, lifestyle and medical history. You may be put onto medication to help stop your blood from clotting too easily, or to actually thin your blood. This will depend on where the blood clot you have is situated. You may need to take blood pressure and cholesterol medication too, because having high blood pressure or high cholesterol means that you are more at risk from a TIA or stroke. Surgery may also be necessary, to help remove any blockages in your arteries, but this will only be considered for people who have serious blockages. If you or a loved one experiences the symptoms described above, remember FAST and seek medical help by dialling 999 immediately. If you would like some more information about this article or if you would like to speak to someone, please call us and we’d be happy to help you.
What is the phrenic nerve and what does it do?
Many people have never heard of the phrenic nerve, although it is actually a very important part of your body - the phrenic nerve is situated next to the spinal cord in your neck but then branches out to the left and right, leaving the protection of the backbone and entering the chest and abdomen.
What does the phrenic nerve do?
The phrenic nerve, of which there is a left and a right, sends signals to your diaphragm from your brain. When your diaphragm moves, this either pulls or pushes air into your lungs and your phrenic nerve helps to keep your body breathing automatically.
What happens if the phrenic nerve is damaged?
If your phrenic nerve is damaged, the results can be extremely serious, causing severe medical complications.
The most common ways in which the phrenic nerve can be damaged is by a traumatic injury to your neck or if either the left or right phrenic nerve is damaged when you are undergoing surgery on your chest or abdomen. Whilst the phrenic nerve controls the diaphragm, it also sends back important signals to the brain, which identifies if there is pain in the chest and how all of the organs are operating within the chest. These messages help the brain maintain respiration at normal levels. Some odd symptoms show up when the phrenic nerve is irritated. For example, hiccupping which is actually an involuntary movement of the diaphragm. Another symptom may be pain in the tip of the shoulder blade. However, the most common symptom of phrenic nerve damage is finding it difficult to breathe. Where one of the two phrenic nerves has been damaged, you will still be able to breathe, but it will be difficult. Damage to both nerves is an emergency as you will be unable to breathe without some form of mechanical assistance.
Can the phrenic nerve be repaired?
Nerves are generally very good at regenerating and, with time, your nerve damage may improve. Often however, at least where the phrenic nerve is concerned, the damage caused is irreversible.
If you have suffered from phrenic nerve damage as a result of an operation or an accident, you should get advice from a specialist solicitor who will be able to discuss your options with you.
What is Crohn's disease and how is it treated?
Crohn’s disease is a chronic condition. In other words it is a condition which will affect a sufferer long term. Crohn’s disease affects the lining of the digestive system and causes inflammation in any part of the digestive tract, from the mouth all the way through to the back passage.
The most common parts of the digestive tract which are affected with Crohn’s disease are the ileum (also known as the small intestine) and the colon (known as the large intestine).
There are currently over 115,000 people living in the UK who suffer from Crohn’s disease and many of these cases are first identified between the ages of 16 and 30 years old. This disease is more common in the white population and does not affect black or Asian people so much. Because Crohn’s is a chronic condition, many people who suffer from it will have periods of time when they are in remission. This means that they are free from any symptoms at all or only have mild symptoms. Often following these periods of remission though, they will suffer from a flare up of their symptoms and become quite ill. Some of the symptoms of Crohn’s disease are:
- Pain in the stomach
- Weight loss
- Blood and mucus in faeces
The cause of Crohn’s disease is not exactly known, but there is some evidence to suggest it is a combination of many different things such as one’s genes, one’s immune system, previous infections, smoking and environmental factors too. Because there is no cure for Crohn’s disease, treatments have been developed to help reduce the severity of the symptoms that Crohn’s disease causes, and to help prolong the periods of remission and halt the inflammation response wherever possible. This can be achieved by using steroid medication called corticosteroids. There is also an immunosuppressant medication which helps to stop the immune system from reacting so much and causing the inflammation in the first place. If these treatment options prove to be unsuccessful, then there is the more drastic option of having surgery to completely remove the inflamed section of intestine. This can lead to a stoma bags being required and such surgery is only undergone in very severe cases of inflammation. After the flare up has been treated, more medication may be used to ensure that you stay in remission. If you would like some more information about this article or if you would like to speak to someone, please call us and we’d be happy to help you.
What are the potential risks associated with Gentamicin?
Most people who are prescribed antibiotics will take them without a second thought. Whilst you will probably be informed about the potential side effects, you probably think that they won’t affect you, but what happens if you are affected?
Gentamicin is an antibiotic which is used to treat all sorts of bacterial infections such as infections in the chest, lungs, kidneys, bladder, ears, eyes and blood. It is also used to prevent infection in new born babies.
However, Gentamicin is both ototoxic (in other words it is toxic to the ears and can therefore cause irreversible hearing loss unless the dosage is properly prescribed and monitored), and nephrotoxic ( in other words it is toxic to the kidneys and can therefore cause kidney damage or even kidney failure unless, again, the dosage is properly monitored). The elderly are particularly vulnerable to the toxic effects of Gentamicin described above, and medical professionals should therefore take even greater care and consideration before prescribing elderly patients with this drug. With all patients being considered for a course of Gentamicin, kidney function tests should be carried out beforehand, and if there are then concerns over a particular patient’s kidney function then, at the very least, the time interval between doses of this drug should be lengthened and, in addition, a lower dosage should be considered. As referred to above, once Gentamicin has been given there should be careful ongoing monitoring of the dosage level and timing, as well as close monitoring of the patient’s blood, especially before further doses are given, so as to check that the level of Gentamicin within the blood is not too high.
All hospitals should follow strict protocols to ensure, as much as possible, that the devastating side effects of Gentamicin are avoided. Doctors will often look for an alternative treatment wherever possible due to the risks associated with this drug. If any of these protocols are not followed, or there have been mistakes made in the dosage/ administration of this drug, then you may be able to make a claim for medical negligence compensation if you have suffered or continue to suffer any of these side effects. If you would like some more information about this article or if you would like to speak to someone in our medical negligence department, please call us and we’d be happy to help you.
What is appendicitis?
Appendicitis is a painful swelling of your appendix.
Your appendix is a small pouch which is attached to your large intestine and is found in the right side of your body underneath your abdomen.
The symptoms of appendicitis can be confused with other infections, which is why sometimes it does not get diagnosed quickly enough. We have encountered numerous clients who were incorrectly diagnosed as suffering from a Urinary Tract Infection (UTI) when the correct diagnosis was appendicitis.
Should I feel guilty about suing my doctor for medical negligence?
In a word, No.
It is not uncommon for potential clients in medical negligence cases to question whether it is morally acceptable to sue their doctor, especially when the doctor works for the NHS. The feeling of guilt most often stems from the long-held view that the NHS is untouchable and any mistakes that it makes should be forgiven because…..well simply because it is the NHS and has been around for so long.
The first point to make is that the clinicians involved with your treatment did not set out to injure you on purpose. That said, you can rest assured that it will be you and your loved ones who have to cope with the consequences of the negligent treatment that caused your injuries, and not the doctor or other medical professional concerned. These injuries which may well have had and continue to have a significant impact on your daily life as well as that of your immediate family. You may require treatment to assist you with your recovery. Even if that treatment is available under the NHS you may have to wait weeks for it to start, and even then the treatment is unlikely to be as frequent as would ideally be the case. Who is going to have to pay for private treatment therefore? You again. You may well have suffered loss of earnings as a result of having to take time off work to recover from your injuries. Is the hospital/doctor/dentist whose poor treatment led to you suffering this loss going to reimburse you? Probably not, or at least not without a fight. It is therefore only right that if you have suffered injury and loss as a result of someone else’s error, you should be adequately compensated as a result. Please also remember that if you suffered injury as a result of negligent medical treatment at an NHS hospital, you will not be directly suing the doctor or nurse, but rather the NHS Trust that employs that doctor or nurse. In fact even if you make a compensation claim against an individual clinician (which happens in claims against GPs; dentists or when the negligence was caused by a doctor at a private hospital), the day to day handling of the claim will not involve that particular clinician at all. Remember that they will not be taking it personally, and neither should you. If you would like to discuss this article with a member of our medical negligence team, or if you would simply like to talk about the possibility of making a medical negligence claim, then please contact us today by telephone, email or by completing our online enquiry form.
My doctor made a mistake with my treatment. Am I automatically entitled to some compensation?
It is often, understandably, assumed by potential Claimants in medical negligence cases that if they have been unfortunate enough to receive treatment and/or advice from a doctor, nurse or other clinician which was below the standard which one should reasonably expect, then there is always an entitlement to at least some compensation. This is not, in fact, the case.
For any medical or clinical negligence claim to succeed, the Claimant (who is usually the patient who received the treatment and/or advice in question) will have to prove not only that the medical treatment and/or advice received was inadequate and therefore negligent (this is referred to as “breach of duty”), but also that as a result of this negligence, the Claimant suffered injury which he or she would not otherwise have suffered (this is referred to as “causation”).
If a Claimant is able to show that his or her treating doctor breached the duty of care that the Claimant was owed, but cannot prove that he or she suffered injury as a result then the medical negligence claim will fail.
An example case:
A man, Mr X, falls off his bicycle and is taken by ambulance to the local hospital’s Accident and Emergency department complaining of pain in his left collar bone. An x-ray of the collar bone is carried out and Mr X is informed that the x-ray does not show any fracture. He is given some painkillers and is sent home.
One week later Mr X, who has been at home resting his arm and has not been working, attends his GP surgery as he is still in pain with his collar bone. Whilst there his GP confirms that he has received a copy of the x-ray report from the hospital which confirms that Mr X has sustained a fractured collar bone. The fracture is relatively minor and no surgery is going to be required. Mr X is told that the fracture will heal on its own.
In the above example there is very likely to be a breach of duty on the part of the hospital in that Mr X was incorrectly told that he had not fractured his collar bone whereas in fact he had. However, there is no medical negligence claim because there is no causation. Even if the correct diagnosis of a fractured collar bone had been made at the time, the only treatment would have been painkillers and avoiding strenuous use of the left arm (so as not to make the fracture worse) – both of which have happened in Mr X’ case anyway. In addition, any pain that Mr X suffered in the week between the accident and the diagnosis would have been present anyway.
The above hopefully shows that the often-used quote “Where there’s blame there’s a claim” is not always true.
If you have any comments to make about this article or would generally like to discuss a potential medical negligence claim, then please contact us and we will put you through to a member of our specialist medical negligence team.
I’ve had a poor result from bunion surgery. Can I sue?
Anyone can develop a bunion, but generally they are more common in women than men. This is possibly due to the type of shoes some women wear.
A bunion (or hallux valgus) is a bony deformity of the joint at the base of the big toe.
Surgery is not considered necessary unless the symptoms become severe and the bunion does not respond to non-surgical treatment such as painkillers, orthotics (insoles) and bunion pads.
Having surgery does not guarantee a resolution of symptoms (improvement in symptoms is seen in approximately 85% of cases).
There are always risks of having any surgery and it is no different for the removal of a bunion. Some of the risks of having bunion surgery include: Infection, nerve and vessel injury, a sore scar, swelling and recurrence leading to further surgery. Having any of these results following surgery may not necessarily lead to a successful claim for negligence against the relevant medical professional.
Prior to undergoing surgery, the treating surgeon should outline the above risks to the patient and obtain the patient’s consent to the surgery.
Stiffness and discomfort is not uncommon following bunion surgery and for most people this resolves in approximately 3-6 months. If a person has symptoms for longer than this, then it is possible that the surgery was performed negligently.
Whenever metal work is inserted, there is always the possibility of it subsequently needing to be removed because of it being prominent, but again this is not necessarily negligent.
Bunion recurrence and requiring further surgery is one of the main risks of having the initial surgery.
There are many different types of operations for bunion removal and it is important that the surgeon uses the correct one. If the operation is unsuccessful then it is reasonable to query whether the correct type of surgery was done.
So, to answer the above question, you may be able to sue for compensation but it is very much dependent on the facts of each individual case.
What types of fracture can be misdiagnosed?
Any type of fracture can be misdiagnosed.
Sometimes, fractures in the feet or ankle can be missed due to the similarity of symptoms with a sprained ankle.
An x-ray may not be carried out on the sprain and this may result in missing an underlying fracture. When there is no evidence of any trauma, there could be an undiagnosed condition which results in a fracture.
Osteoporosis is one such condition. If A&E do not pick up on this condition and order further tests, the fracture diagnosis may be delayed or even completely missed. If a fracture is missed and the correct treatment not carried out within an acceptable timescale, the implications can be significant. For example, if the fracture needed to be secured with pins and wasn’t, there could be lasting problems which affect you for some time afterwards.
Delayed diagnosis of broken fingers – can I sue the hospital?
Whilst there is no straightforward “yes or no” answer to this question, our Medical Negligence specialists would say “probably, yes”.
Cause of fracture
The Emergency Department at a hospital ought to take a full history of any injury presented to them, including how it was caused.This information should give the treating hospital staff some indication as to whether or not there is a likely fracture. For example, fractures to the fingers often occur as a result of a punching injury or as a result of a fall.
Failing to spot fractures in X-rays
X-rays are carried out regularly in Emergency Departments up and down the land. The first person to review the x-rays will often be a junior member of medical staff.
Whilst these members of staff will have been trained on how to read and interpret x-rays, their lack of experience can lead to fractures being missed.
A second opinion is required
Hospitals should allow for the possibility of missed fractures in their risk assessment process by ensuring that the same x-rays are immediately reviewed by a senior doctor in the same department or by a Radiologist. Sometimes, such a review might not take place for a few days but this is generally acceptable.
If a junior doctor has been found to miss a fracture, the patient can be recalled and appropriate treatment provided without the patient’s recovery being affected to any significant degree.
When do medical negligence claims occur?
Problems arise when fractures are missed by the junior doctor, and the x-rays are then not reviewed for a week or more, and/or even when they are reviewed the senior member of staff also misses the fracture(s).
If the fractures were spotted in the end, but there was a delay, a medical negligence claim would probably succeed if the delay was clearly more than a few days (roughly 3-4 days).
If the fracture was missed but then spotted and the patient recalled within a few days, although technically there had been a breach of the duty of care owed by the hospital to its patient, the effect of that breach of duty is so minimal that a compensation claim would not be feasible.
Failing to take X-rays
If x-rays were not taken by the hospital, then the claimant is likely to be in a stronger position with regards to liability (depending upon the history given to the Emergency Department at the time).
How broken fingers and hands differ
Injuries to the fingers/hand are particularly time-sensitive. The longer the delay and the more severe the fracture(s) is, then the more likely it is that the patient/client will be left with long term and even permanent symptoms in the hand.
The greater the impact to a person’s domestic and working life, the more the claim is likely to be worth.
Long term symptoms could include pain and discomfort in the fingers over and above any pain and discomfort which the patient would have experienced anyway; deformity in the finger(s) itself etc.
If you or someone you know has experienced a delay in having a fractured finger(s) or any other fracture diagnosed, please contact our Head of Medical Negligence, John Gomersall, on 0117 930 8434.
What are the impacts of childbirth injuries?
It may be difficult for many people who have suffered from serious birth injury to discuss this openly. Giving birth is supposed to be a time to be celebrated and to be happy, but if you have suffered a birth injury you will probably be upset and distressed.
Often people do not realise the damage that can be done during childbirth and labour and the implications of this too. Sometimes tearing can happen in the perineum whilst giving birth, and if the tearing is severe, the perineum can tear all the way down to the anal canal and rectum.
If this happened to you, you ought to have had surgery to repair the tear to your perineum immediately following the birth of your child. Your recovery will be probably be painful and you will need to have antibiotics too to ensure there is no infection of your wound. You may find that after your operation and during your recovery you have problems controlling your bowels and you may even be experiencing faecal incontinence. This is normal and it is because the muscle that controls your bowel has been damaged and is still healing. However, if you are continuing to suffer from such symptoms several months after giving birth, then there is a possibility that the repair surgery was not carried out to an acceptable standard. Some of the symptoms of the damage to your bowel muscle are that you suddenly feel desperate to run to the toilet and find it difficult to hold on; you suffer from diarrhoea; or you are unable to hold in or control any wind. These symptoms will be very distressing, but will hopefully improve as the muscle repairs itself and your wound starts to heal. You can also help the control of your bowel by completing pelvic floor exercises as the pelvic floor muscles actually help to support the muscle which works your bowel too. If, at your six week check-up you feel that you are not recovering well or you are still struggling with faecal incontinence, you should raise this with your treating doctor and ask to be referred to a physiotherapist who is specialised in helping with this kind of birth injury. It is a difficult and distressing thing to go through but there is help available for you, so don’t suffer in silence. If you would like some more information about this article or if you would like to speak to someone in our medical negligence department, please call us and we’d be happy to help you.
My baby sustained a severe laceration from the use of forceps during delivery. Can I sue?
Should forceps have been used?
The use of instruments such as forceps during labour is in most cases reasonable and justified.
That said, the doctor undertaking the use of forceps must make sure that the forceps are applied and used correctly otherwise injury to the baby can occur.
Why didn't they perform a Caesarean Section?
We are sometimes asked whether in a particular case, a Caesarean Section ought to have been carried out as opposed to a “normal” vaginal birth with the use of forceps. Whilst this would remove the risks associated with the use of forceps, it must be remembered that a Caesarean Section is major abdominal surgery and also comes with increased risk of significant blood loss, as well as a much longer hospital stay and recovery time than if the baby is delivered vaginally.
As a result, it is often reasonable (even where a difficult vaginal birth is anticipated) for initial attempts to be made at a vaginal birth (perhaps with the use of forceps) but with a view to swapping to a Caesarean Section if deemed necessary.
What safety measures should be in place?
As one would expect, the Royal College of Gynaecologists makes various recommendations for things that ought to be in place before a decision is made to proceed with a vaginal delivery: There should be theatre staff immediately available to allow a Caesarean Section to be performed within 30 minutes in case of failure to deliver vaginally.
How should the forceps be used?
If forceps are used then the leading edge of the forceps blade should be placed over the baby’s upper jaw. If your baby has, therefore, sustained an injury/laceration to his/her forehead or eye then this suggests that the leading edge of the forceps blade was incorrectly placed and/or that poor technique was used by the doctor concerned. Either way this is potentially evidence of negligent treatment.
Even where the nature and location of the injury suggests that the forceps were correctly positioned, the fact that an injury has come about at all would be concerning and may suggest that the forceps were used in an overly zealous manner.
Contact us for free first advice
If your baby has suffered an injury following the use of forceps during labour then we would like to hear from you.
Please contact our Head of Medical Negligence, John Gomersall, to discuss the particular circumstances of your baby’s injury
We offer all our clients free first advice and there is no obligation to proceed with a claim unless you wish to do so.
What are third and fourth degree tears?
A third degree tear will extend downwards from the vaginal wall and perineum to the anal sphincter, which is the muscle which controls the anus.
A fourth degree tear is the most serious type of tear that can be experienced when giving birth. It extends down from through the vaginal wall, through the perineum to the anus canal and into the rectum. Although it can be very difficult to predict when a tear might happen, there are indicators to show higher risk.
These factors are:
- If you have a long second stage of labour (the time from when you are fully dilated to when you give birth). A long time for this phase (certainly if it is a first baby) is anything in excess of 3 hours.
- If your labour is induced.
- If it is your first vaginal birth.
- If you are expecting and give birth to a large baby (over 8lb 13oz or 4kg).
- If you have an assisted delivery using either ventouse or forceps.
How is a fourth degree tear treated?
If your midwife thinks you have a fourth degree tear, you will have a thorough examination of your vagina and anus and you will be advised on your surgical options.
You will need to have either a spinal anaesthetic, epidural, or possibly even a general anaesthetic and your tear will be stitched.
The repair should be carried out as soon as possible after the birth to prevent excessive loss of blood and to minimise the risk of infection. In addition, a catheter should be inserted to avoid urinary retention.
The repair of a fourth degree tear should be carried out by (or be under the supervision of) a doctor who has been formally trained in primary anal sphincter repair.
If this did not happen in your case then you may well have a claim for medical negligence.
How should a third degree tear be treated?
A third degree tear ought to be repaired in an operating theatre under anaesthetic. This will normally be a spinal anaesthetic but it may be a general anaesthetic.
The repair should be carried out by a doctor who has had formal training in primary anal sphincter repair, or at least by someone who is under the supervision of someone so trained. Following the repair, you ought to be given antibiotics to reduce the risk of any infection and you should also be given painkillers and laxatives to make it more comfortable for you to open your bowels. Within 6 to 8 weeks of the delivery of your baby you should be assessed in hospital by a senior obstetrician so that the extent of your recovery from the tear can be assessed.
What are the long term effects of a third degree tear?
A good recovery should be made after a third degree tear but some women may have pain or soreness in the perineum, a feeling that they may need to rush to the loo to open their bowels, a fear about having sex again and also about getting pregnant and giving birth again.
It may not be possible to have a vaginal birth after suffering a third degree tear – you should discuss this with your consultant. If you have suffered or indeed continue to suffer symptoms following the repair of your third degree tear, such as incontinence or pain during intercourse, then it could be that the repair was not done properly.
If this is the case, you could have a medical negligence claim.
What policies are in place to prevent retained swabs after surgery?
The policies and procedures that each NHS Trust has in place will almost certainly include the following:
- Written procedures to account for all swabs used during births and also during the stitching of perineums following tears or episiotomies.
- Training of all staff including support, midwifery and obstetrics on the counting procedure in place.
- Ensuring the midwives and obstetricians are aware of their responsibility for recording the swab count in the notes
- Risk assessing all materials used and considering the use of x-ray detectable swabs.
- Making sure that all incidents of retained swabs are reported appropriately
If these procedures are not followed and swabs are left behind, the NHS trust will struggle to defend its position as the staff failed to follow the procedures in place. The NHS has paid out £3 million in compensation in 10 years (2000 to 2010) to women with retained swabs following the use of maternity services. The good news is that year on the year the number of incidents of this nature are reducing due to the implementation of these processes.
How long have I got to bring a medical negligence or personal injury claim?
Whether you have been injured in an accident that wasn’t your fault or you have suffered from medical negligence, you have the right to seek compensation for your injuries. There is a limit on the amount of time you have to make a claim for compensation though, and this is formally referred to as 'limitation'.
The time limit for both medical negligence claims and personal injury claims is usually 3 years from the date of the accident or the medical negligence. However, there are exceptions to this.
Exceptions to the 3 year limitation rule
A person does not reach adulthood in the eyes of the law until they are 18 years old and as a result, they are unable to make a claim for compensation until they are 18. The law states that if someone who is under the age of 18 has an accident or suffers medical negligence and is injured, they have 3 years from the date of their 18th birthday to make a claim. As a parent, you are still able to make a compensation claim on behalf of your child before he or she is 18 years of age, but the 3 year limitation period does not start until your child turns 18.
Accidents resulting in death provide another exception to the limitation rule in personal injury and clinical negligence claims.
Sometimes people who have been injured do not die immediately, and so the Limitation Act makes allowances for this. Limitation will run in these circumstances for 3 years from the date of the person’s death, rather than from the date of their accident or injury as in other personal injury or medical negligence claims.
'Date of Knowledge'
Always remember that the 3 year limitation period will start to run from one’s date of knowledge, where the date of knowledge is later than the date of the accident or the negligent medical treatment.
“Date of knowledge” is defined in the Limitation Act as the date when one knew or ought to have known:
- That the injury in question was significant.
- That the injury was at least partially attributable to the accident or negligent treatment which is the subject of the compensation claim.
- The identity of the defendant.
For example, if your GP failed to diagnose you as suffering from cancer during one or more visits to your GP surgery in March 2012, and you then did not find out that you had cancer until 1st December 2013, your date of knowledge will be 1st December 2013 and that is the date when the 3 year limitation period will start to run.
You would then have until 1st December 2016 to commence County Court proceedings against your GP. With any medical negligence or personal injury claim, clear and independent legal advice as early as possible will mean that you can make an informed decision about whether you want to make a claim for compensation and also ensure that you are not out of time when you do decide to claim for your injuries.
Can a medical negligence claim still be made if the injured person has died?
The short answer to this question is “Yes”, although, as one would imagine, there is a little more to it than that.
If a patient receives negligent medical treatment and subsequently dies (whether or not as a result of that negligent treatment) then a claim for compensation can be brought by the deceased’s Estate and/or dependants. This is provided that the normal 3 year limitation period for bringing a medical negligence claim had not expired by the time of the deceased passing away. Here is an example:
The doctor of Mr X fails to diagnose him as suffering from cancer despite Mr X attending upon his doctor for many months prior to his diagnosis, displaying symptoms that were strongly suggestive of cancer. By the time that the diagnosis is made, on 1st June 2012, Mr X is already terminally ill. The 3 year period within which Mr X must commence a medical negligence claim against his doctor commenced on the date of the diagnosis (1st June 2012). If Mr X subsequently dies within this 3 year period (ie up until 1 June 2015) then Mr X’ Estate will have 3 years from the date of Mr X’ death to commence the claim out of a county court. If however, Mr X dies after 1st June 2015 and has not commenced his claim by the time of his death, then Mr X’ Estate will be time barred from proceeding with the claim. You may ask why, in the above example, Mr X’ Estate and/or dependants are allowed a further 3 years to commence the claim out of the county court following Mr X’ death. This is to avoid the unfair scenario of Mr X dying only a few weeks prior to the 3 year limitation period running out, and his Estate being left with the nigh on impossible task of having to take over the claim; obtain Probate etc in those few weeks before the limitation period expires. Obtaining Probate alone can often take several months and must have been granted before a claim on behalf of the Estate is commenced. If at the time of Mr X’ death he had already instructed a firm of solicitors to investigate his claim, then it is likely that the solicitors’ firm concerned would be prepared to enter into a separate agreement with Mr X’ Estate and/or dependants on similar terms. If this is the case, then the claim itself will otherwise proceed as normal. If you would like to discuss anything within this article, or if you have any other questions about medical negligence claims, then please contact us and ask to speak to a member of our medical negligence team.
What will it cost to make a failure to diagnose appendicitis claim?
We’ll talk to you about your situation in detail to help you to decide if you would like to make a claim for compensation for the failure to diagnose your appendicitis.
Your first visitor conversation to us is always free of charge. This gives us the opportunity to talk to you about making a claim and helps you to decide if you are happy for us to represent you. At this visit we will discuss with you how to fund your claim and give you clear, uncomplicated advice about all the options for funding, and advice regarding the best option for you.
Should I feel guilty about bringing a negligence claim against my dentist?
No you should not.
If you have received negligent dental treatment from your dentist that has caused you pain and suffering which could have been avoided, it is only right that you should recover compensation.
It is highly unlikely that your dentist will take it personally and there is no reason why you should not continue to remain with the same dentist if that is what you wish to do.
Alternatively, it is usually straightforward to transfer to another dentist within the same surgery or move to a different surgery altogether.
How long will a dental negligence claim take?
Dental negligence claims are not particularly quick, but if your dentist admits negligence early on in the claim then that will go a long way to shortening the length of time it takes until you receive your compensation.
On average, a dental negligence claim will take between 18 months and 2 years.
If you or someone you know has suffered from negligent dental treatment then please contact our dental negligence team today.
I have been told that I have injured the Lisfranc joint in my foot. What is this?
The Lisfranc joint is in fact made up of a number of joints in the foot (otherwise known as the tarso-metatarsal joints) rather than being one distinct joint on its own. It is the Lisfranc joint which helps to provide the arch in the foot and it also provides movement so as to assist us if, for example, walking on uneven ground.
If you have simply been told that you have a Lisfranc joint injury then this is likely to mean that you have fractured one or more of the tarso-metatarsal joints. These joints can be found, in basic terms, where the toes come together with the rest of the foot.
It is possible, however, for a Lisfranc joint injury to be a soft tissue injury rather than an actual bony injury (ie a fracture) and so if you have not had this confirmed by your treating doctors then you should seek this confirmation as a matter of urgency.
These injuries are not particularly common and are also not necessarily straightforward to diagnose. A fracture of the Lisfranc joint is often best demonstrated on what is called a “weight bearing x-ray” – in other words an x-ray where the patient is standing up and putting his/her weight onto the foot. Such x-rays may not, however, always be taken in hospital, even if such an injury is suspected, due to the amount of pain that the patient is likely to be in at the time.
Once the initial swelling from any Lisfranc joint fracture has gone down (which can take several days) then a CT scan should be taken of the confirmed/suspected fracture and this will show in more detail the level of displacement within the Lisfranc joint. At that stage your treating doctors should, as swiftly as possible, make a decision as to whether surgery on the foot is required. Generally speaking, if the fracture(s) is undisplaced (i.e. the bone has stayed in its normal position) then surgery is unlikely to be required. However, if there is displacement then this will almost certainly need to be treated surgically and held in position with screws.
If the damage to the Lisfranc joint is very severe then fusion surgery may be required. This would be a last resort however, as whilst such surgery is likely to cure the pain which the patient is experiencing, the fusion itself will impact upon the movement of the foot in the long term.
Statistically Lisfranc joint fractures are highly likely to lead to the development of arthritis in the foot later on, although there is a decent chance that this arthritis will not lead to further symptoms of pain.
Problems can come where there is a missed or delayed diagnosis of a Lisfranc joint fracture, particularly a displaced one, because a delay in appropriate treatment of such an injury will potentially have an impact upon the function of the foot in the long term and can quite possibly also lead to long term symptoms of pain for the patient which could otherwise have been avoided.
What is Cauda Equina Syndrome?
If someone is diagnosed with Cauda Equina Syndrome (CES) it means that the lumbosacral nerve roots at the bottom of his/her spinal cord (known as the cauda equina) have become squashed, usually as a result of a slipped disc (also referred to as a prolapsed disc).
Believe it or not, there is no universally accepted definition of CES but most experts agree that the key symptoms are:
- Pain down the back of both legs below the knee
- A numb feeling between the legs (known as “the saddle area”)
- Weakness in the legs
- An inability for the patient to tell that his/her bladder is full
- Incontinence of urine and/or faeces
- Loss of sexual function
By no means does a patient have to be suffering with all or even most of these symptoms to be given a diagnosis of CES, and for those patients unlucky enough to be given such a diagnosis time is very likely to be of the essence. For example, he/she should have an MRI scan of the spine within a matter of hours, not days or weeks. If the MRI scan then confirms a compression of the cauda equina then surgery to decompress the spine (in other words stop the nerve roots from being squashed) needs to be carried out urgently.
Medical evidence indicates that if, by the time the patient is diagnosed with CES, he/she is already suffering with a complete loss of voluntary bladder function (in other words the patient is unable to urinate when he/she wants to and is also suffering with incontinence) then the chances of decompression surgery making much difference to that patient’s symptoms (certainly in terms of bladder function) are slim and he/she is likely to be left with significant loss of bladder control for life.
However, if by the time of diagnosis the patient still has at least some voluntary bladder function then that patient’s prognosis will be much better provided that decompression surgery takes place urgently (ie within 24-48 hours of when urine retention starts).
CES is a rare condition which many doctors (particularly GPs) will never encounter (or only encounter once or twice) during a whole career. Ignorance of the condition is not an excuse however, and it can have devastating consequences for patients due to delayed diagnosis and therefore delayed decompression.
If you would like to discuss anything within this article, or if you have any other questions about medical negligence claims, then please contact us and ask to speak to a member of our medical negligence team.