On 9 December 2012 C [aged] 64 years old, fell off the back of a lorry when working. He was taken to hospital…where it was found that he had sustained an unstable displaced subtrochanteric fracture of the right proximal femur. The original plan had been to fix the fracture by inserting an implant called an intramedullary (‘IM’) nail and C gave his consent to that procedure. However at some point prior to the operation the consent form was amended to add the option of using a different type of implant, the dynamic hip screw (‘DHS’). [1]
C underwent surgery later that day… D fixed the fracture with the DHS. [2]
The fixing subsequently failed and the fracture reopened. It … can be seen clearly on the x-rays taken on 12 December. Those x-rays were not viewed by any clinician until 17 December and so it was not known before then that the fixing had failed. Until 17 December, some attempts were made to mobilise C in accordance with D’s post-operative advice. [3]
Once it became known on 17 December that the surgery had failed, a decision was made to perform further surgery. It took place on 20 December, when the fracture was fixed with another type of fixing, a proximal femoral plate. The claimant subsequently developed infection in his hip and leg, there were further complications and over the following 18 months he underwent further treatment but ultimately the leg could not be saved. On 3 July 2014 C’s leg was amputated at the hip. [4]
C’s case is that the fracture should have been fixed with an IM nail. The DHS was bound to fail and should not have been used. It was negligent to use the DHS without first attempting to use the nail, which was the optimal device and given the high risk of failure of the DHS… But for D’s negligence, an IM nail would have been used, the fracture would not have displaced subsequently and the claimant would not have lost his leg. [5]
it is also claimed that it was negligent of D not to have looked at the x-rays of 12 December until 17 December, causing C pain and suffering by reason of being required to weight bear during that period. [7]
D agrees that the IM nail was the optimal device for this fracture, if it was possible to use it. The DHS was not bound to fail but the risk of failure was higher than that of the nail. However C was obese and his hip was arthritic, as a result of which both devices carried high risks. The decision to use the DHS was made because, due to C’s obesity and arthritic hip, the nail could not be used. D had attempted to reduce the fracture so as to insert a nail but had been unable to do so. It was reasonable to use the DHS. The fracture was adequately reduced and the DHS fixing appeared to be strong. It was not an option to do nothing. Delaying would have created risks to the patient and was contrary to NICE guidance. In any event D was an experienced consultant orthopaedic surgeon and there was no reason for him to think that anyone else would have greater success with a nail than he had had. [8]
D admits that there was delay in viewing the x-rays but avers that the delay did not cause any pain and suffering or, if there was any pain and injury resulting from the delay, it was trivial and de minimis. [9]
…dismiss the claim. [115]
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