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Minor surgery

01 February 2004

Mr N suffered from spastic paraplegia and his mobility had deteriorated markedly over recent years. Despite this, he had managed to continue earning a living and lead an independent life. In 1995 he was assaulted in the street, sustaining injuries to his back and hip. Not long after this incident, his GP, Dr K, removed an ingrowing toenail under local anaesthetic but recovery was protracted due to dependent oedema.

When Mr N asked Dr K to remove an ingrowing toenail on his other foot a year later, Dr K, bearing in mind the previous episode of oedema, was reluctant to do so but Mr N was insistent. Dr K agreed to do as he asked and performed a wedge excision.

The wound was slow to heal and the toe eventually became infected about four months later. Dr K prescribed a two-week course of antibiotics and performed a Zadek procedure two weeks after the course was completed. Mr N never recovered his mobility and has since been confined to a wheelchair and unable to work.

In a claim brought two years later, Mr N alleged that Dr K had been negligent in (a) his choice of procedure, (b) in electing to carry out the procedure himself rather than refer Mr N to hospital, and (c) in failing to monitor the patient adequately after the operation. The claim was for a large sum of money to compensate Mr N for a premature loss of earnings.

We elected to defend the claim and it went to trial.

The argument presented to the court by the claimant was that his mobility had been further impaired by his enforced inactivity during the healing period.

The judge found favour with this view, preferring the opinion of Mr N’s orthopaedics expert that soft-tissue damage in a person with cerebral palsy can cause an increase in spasticity which ‘seems to decompensate the central neurophysiology so that the whole of the spinal mechanism will become spastic’.

He accepted that the toenail operations accelerated Mr N’s transition to full-time wheelchair use (which was inevitable anyway) by one to two years.

However, notwithstanding his conclusions about causation, the judge did not consider that Dr K’s management of Mr N had been negligent. With many years’ experience in surgery before becoming a GP, Dr K was well qualified to carry out the procedures, which were well chosen and competently performed. Moreover, the claimant failed to establish that there would have been any advantage to having the operation in hospital.

The judge also accepted Dr K’s version of events – namely, that he had recommended referral to hospital, which the claimant had declined, and that he had played his part in trying to get Mr N’s rehabilitation programme underway during the postoperative period.

The case against Dr K was consequently dismissed.

Our costs of around £14,000 were not recoverable as Mr N was unemployed and legally aided.