Our personal injury and clinical negligence team assisted in an out of court settlement for a 23-year-old woman following the injury sustained after a procedure to repair her chest wall, following a diagnosis of asymmetric pectus excavatum in September 2009.  A settlement of £450,000 was awarded after the woman underwent two unnecessary operations, suffered psychiatric injury, had on-going chest problems and required future surgery.

Background

The claimant was born with mild spinal scoliosis and during her childhood developed an asymmetric pectus deformity of the chest wall. She was referred to a consultant thoracic surgeon, Mr Edward Black, on 21 April 2009 when she was 15 years old. Mr Black discussed options with the parents: performing a keyhole Nuss procedure with further surgical procedures later in life, performing an open Ravitch repair of the chest wall or the option of doing nothing. When advised of the risks of surgery the claimant and her parents were told that there was a slight chance the bar would become displaced over time, but no chance of it breaking as it was made of titanium. It was discussed that the procedure would be carried out through a sub-mammary incision leaving a small 'u’ shaped scar below the breast line. Risks involved were also discussed from general surgical pain to infection, paraesthesia, cosmesis or  possibly worse.

Procedure

The claimant had the Ravitch procedure on 18 September 2009.  When she woke from the surgery she found that instead of the small ‘u’ shaped scar below the breast line as discussed, she had a vertical scar running from her third rib down to her navel. In March 2011, the titanium bar snapped in two places. The bar was removed and replaced with a further single bar. In June 2011, the replacement bar became displaced and was sticking out the side of the chest wall. The second bar was removed in surgery on 17 April 2012 and was not replaced.

Results of procedure

The claimant brought an action against the Oxford University Hospitals NHS Trust in negligence and on the basis that the defendant was the supplier of the bar within the meaning of section 2(3) of the Consumer Protection Act 1987. This is because the defendant failed to investigate the cause of the fractured bar and failed to identify the manufacturer or supplier within a reasonable time. The Trust could not confirm what became of the fractured bar and therefore investigations as to the cause of the fracture were hampered. The claimant was left with numbness in her chest, an incisional hernia, a scar of 15.5cm in length and 3mm in width, a sternum which remained in malunion and moved when coughing and breathing, on-going pain, an unstable chest well, numbness in her breasts poor breast development and prominent costal margins. She also suffered a major depressive disorder. The claimant’s pain resulted in her being unable to bend down or raise her arms above her head. She had pain when sleeping and was only able to manage a 20 hour week in an office job. She had lost her opportunity to become a chef. 

Conclusion

The case took some eight years and was settled at a meeting eight weeks before trial in the High Court.