Client wins compensation award following shoulder surgery

David Dawson, a consultant solicitor with Price Slater Gawne, has secured a victory on behalf of our client after a 6 day trial in the Winchester County Court. The case concerned negligent shoulder replacement surgery carried out in the private sector by Mr Richard Hartley, a consultant orthopaedic surgeon at the Spire Nuffield Hospital in Bournemouth. Our client was an active 63 year old lady who developed arthritis in her right shoulder which was painful and restricted her activities.

Mr Hartley recommended a hemi-arthroplasty of the shoulder and after much deliberation our client agreed to the operation. On 11th December 2009 Mr Hartley operated, and inserted a De Puy Global CAP prosthesis. These prostheses come in a range of sizes.

Afterwards, our client suffered from considerable pain and discomfort. Although she had been told to expect an improvement after 3 months that improvement did not come about and eventually she sought a second opinion. She was advised that the prosthesis used by Mr Hartley was too large and that her shoulder joint was “over-stuffed”. Under the care of Mr Simon Lambert in June 2010 she had a revision operation in which a smaller prosthesis was inserted. This lead to almost immediate relief from pain and discomfort.

Our client consulted David Dawson and after initial investigations and a supportive report from Shoulder Expert Mr Michael Kurer, a letter of claim was sent to Mr Hartley in March 2011.
Despite David’s best efforts to resolve the case by negotiation, Mr Hartley’s insurers were intent on doggedly defending the case. Court action was started but Mr Hartley’s insurers continued to defend the case arguing that the prosthesis was not too large and that even if it was, our client’s pain and discomfort were problems she could have had even from a properly performed operation.

There were several false starts to the trial. Initially set for January 2014 the Defendant’s expert was unfortunately too ill to attend the trial and it was adjourned to September 2014, when the trial was adjourned again. At this point the Defendant was given permission to appoint an alternative expert, Mr Michael Thomas.

Eventually the trial took place in Winchester over 6 days in February 2015 before His Honour Judge Hughes, and judgment was handed down on 21st May 2015. After all of this time, our client was delighted that the Court found entirely in her favour, preferring the expert evidence of Mr Kurer over that of Mr Thomas and deciding that the prosthesis used by Mr Hartley was indeed too large and that was the cause of her difficulties.

She was awarded damages and costs. In December 2013 David Dawson had put forward a sensible settlement offer which was refused by the Defendant. This meant that the case had to be decided by the Court and in the end the Defendant’s refusal to negotiate meant that his insurers ended up paying significantly more in compensation and costs.

Many claimants would have given up on the case in the face of such determination by the Defendant’s representatives to take the case all the way to trial. It is to our client’s credit that she persevered in spite of all of the obstacles put in her way by the Defendant’s insurers.