The relevance of external factors

The relevance of external factors

In the case of Laughton v Shalaby (2014) the Claimant had a left hip replacement and her surgeon used the “antero-lateral approach” for the operation. This required the surgeon to detach the gluteus medius muscle from the bone so that the prosthesis could be inserted before the muscle was reattached.

Following her surgery the Claimant saw no improvement in her symptoms and during a second operation it was discovered by a different surgeon that the muscle had not been reattached to the bone.

At the trial of the Claimant’s claim it was alleged that the first surgeon had negligently failed to reattach the gluteus medius properly or at all. The Judge considered the expert evidence and preferred the view expressed by the Defendant’s expert that tearing away (avulsion) of the muscle was a recognised, although rare, complication following the surgical approach adopted by the surgeon. Consequently the claim was dismissed.

On appeal, the Claimant submitted that the risk of natural avulsion was so rare that it was statistically insignificant. Instead it was argued that it was more likely that the Defendant had either not reattached the muscle or had failed to do so properly. The Claimant also tried to adduce extraneous evidence about the Defendant’s lack of probity, stress-related problems and incompetence in other cases. The Court of Appeal held that the statistics about the risk of avulsion were not clear cut. It also held that whilst the conditions imposed on the Defendant’s registration to practice and his suspension for assault might have been relevant to his credibility they did not make it more probable that he had performed the Claimant’s operation negligently. There was no medical evidence produced proving stress related problems and evidence of incompetence in other cases was only admissible if relevant to the issue being considered. Consequently the appeal was dismissed.

David Gazzard has dealt with many claims involving negligently performed hip replacements and in particular the “Hardinge approach”. For a confidential discussion, David can be contacted on 01793 615011.