Mr Charlie Ware

Specialty Claims Adjuster

Common Allegations and The Calculation of Damages

A quick Google search of “orthopaedic claims” will result in prominent adverts from an endless list of law firms who are keen to demonstrate to potential Claimants their expertise at securing damages. There has been also an increasing number of TV adverts and campaigns on social media trying to lure in Claimants. The message behind these flashy “No Win No Fee” ads is clear: if you are dissatisfied with the outcome of surgery, you might be able to get compensation, and you have nothing to lose by giving it a go.

It is important to note that claims for medical malpractice are evaluated by what a “responsible body” of surgical peers would have done had they been in the shoes of the Defendant surgeon at the time. Evidence from independent experts is needed to assess the standard of care and, often, Claimant and Defendant experts will have competing views as to whether the surgeon breached their duty of care to the patient.

Orthopaedic surgery contains many different sub-specialties, however common claims arise across this spectrum. These include, but are not limited to, allegations arising from:

• An adverse outcome or failure of surgery;
• Post-operative complications – including unexpected long-term pain, vascular injuries, or substandard aftercare;
• Incorrect or inappropriate use or positioning of prostheses;
• Missed fractures;
• Inappropriate choice of treatment (e.g. conservative treatment vs surgery);
• Faulty or missing tools or equipment during surgery.

Claims frequently contain allegations that there have been deficiencies in the consenting process. Consent is of course vital when treating a patient, and a failure to obtain informed consent and document it in the notes often proves fatal to any defence you might think you have, irrespective of the outcome of the operation/ treatment. Where consent issues arise, typically it is alleged that there was a failure to advise the patient of all material risks of surgery, or that consent was given for a procedure which was in fact unnecessary.

The Bare Bones of Compensation

The award of damages in the UK is not designed to punish Defendants. Instead, the aim of compensation is to put the Claimant back in the position that they would have been had the negligence not occurred.

There are two main types (or “heads”) of losses for which a Claimant will seek compensation. The first is General Damages; these are designed to compensate the Claimant for their pain, suffering and loss of amenity. General Damages are calculated by reference to the Judicial College Guidelines which ranks injuries on a scale. They range from a short period of avoidable pain right up to the most catastrophic injuries like brain damage and paralysis. As you would expect, the more serious an injury, the higher the value. Perhaps surprisingly, the guidelines are not as generous as one might think. For example, General Damages for a severe injury to the spinal cord resulting in incomplete paralysis, and significantly impaired bladder, bowel and sexual function ranges from £85,470 to £151,070 [Ref 1]. In contrast, this type of injury could result in compensation in the tens of millions of dollars in damages in the US.

The next and typically more significant type of damages a Claimant will seek are Special Damages. These are the calculable financial losses suffered by the Claimant as a result of the negligent surgery, including the costs of meeting their future care needs.

The most significant claims we regularly see are for loss of earnings, aids and equipment, private care, medical expenses, and accommodation. Generally, the more catastrophic the injury, the more impact this will have had on a Claimant’s life, and therefore the more it will cost. Unsurprisingly, Claimants strive to maximise recovery, and we see claims for every loss imaginable; from expensive gym memberships through to private dog walkers.

Let’s take an example of a claim for an allegedly substandard hip replacement in a 45-year-old patient, who is otherwise fit and well. If the Claimant can successfully demonstrate that the operation was not performed to an appropriate standard and resulted in, for example, the need for revision surgery, it would be expected that they would claim for:

  1. General Damages for the avoidable pain and suffering,
  2. Special Damages:
  • loss of earnings;
  • personal care;
  • additional medical expenses (medication, future surgery, physiotherapy etc); and
  • transport costs.

All of the above would not be expected to amount to a significant sum. For example, if the Claimant’s annual salary was £200,000, and they were forced to take four months off work as a result of the incident, their claim for loss of earnings would be in excess of £65,000 alone.

Loss of earnings is often the tip of the iceberg in terms of the overall package of damages often claimed.

However, if instead the surgery did not go to plan and the Claimant was left permanently disabled, then compensation would be significantly higher. The claim for Special Damages could include adaptations to their home to meet the Claimant’s needs, or even a new property altogether if adaptations were not feasible. If the Claimant was unable to return to work, the claim for loss of earnings could be several million, and depending on the Claimant’s needs, the cost of agency care for life could easily reach several more million.

Just how much a claim is reasonably worth is often the subject of lengthy debate between Claimants and Defendants. Extensive investigations and protracted litigation which can take many years, are sometimes necessary to ensure a Claimant is fairly compensated. Experts in nursing, life expectancy, occupational therapy, accounting, architecture and sometimes even surveillance may be needed in the highest value claims.

If a Claimant is awarded compensation, their lawyers can (and always will) recover their fees paid from the compensating party. This makes medical malpractice claims an attractive and lucrative market for Claimant lawyers to operate in (hence, those adverts). Notably, these fees can often exceed the compensation paid to patients and are the subject of rigorous debate between Claimant and Defendant representative groups. It is not uncommon to see lawyers submitting bills for hundreds of thousands where compensation has been low. In one example, a Claimant recovered £3,000 in damages yet their lawyers sought to charge over £250,000 in legal fees., Change may well be on the horizon to limit these unsustainable costs in certain circumstances, so watch this space!

Ref 1: Judicial College Guidelines, 15th edition