Medical Negligence Case Settlement: Negligent Failure To Diagnose And Repair Ruptured Bicep

The Claimant was lifting a heavy item at work when he felt a pop/snap in his left upper arm. He attended his local A&E department (Defendant 1) later that same day in the evening after work.

He was advised by a junior A&E doctor that he had a possible ruptured bicep and that he should attend his GP so he could be referred to an orthopaedic service.

Following this advice, he duly attended his GP, (Defendant 4) the next day and was referred the same day to a local physiotherapy service (Defendant 2), a private limited company not part of the NHS (albeit this was a NHS referral).

He was assessed by a physio, and he then underwent an ultrasound by the same company two weeks later. The ultrasound confirmed an almost complete rupture of the bicep.

The physios then referred the Claimant onto a private orthopaedic consultant, under the NHS choose and book scheme (Defendant 3) with a diagnosis of possible a ruptured bicep. This consultant saw the Claimant one month after the original injury. The Consultant examined the Claimant and advised him that he indeed had a ruptured bicep. He further advised him that he was now beyond the window of opportunity to repair the bicep tendon but did say that a repair using a graft was possible but there was a high chance of complications, which put the Claimant off this operation. He arranged an MRI scan at 3 months post injury which yet again confirmed that the Claimant had a ruptured bicep.

After this, the consultant again met with the Claimant and again told him that a direct repair was not possible as the injury was too old. He advised that he could perform a graft repair but this was complicated and risky surgery. The Claimant was put on a waiting list for treatment and was advised that due to a backlog it could be at least 12 months before he was able to have an operation due to the Covid backlog.

The Claimant was subsequently forced to retire 1 year early due to the loss of strength in his unrepaired ruptured bicep injury. He did not return to work.

The Claimant contacted us when he realised that the delay in treatment had affected his prognosis and chance of treatment. Once the Claimant’s medical records were obtained from the Claimant’s GP, and Defendant hospitals, HJA instructed experts -an orthopaedic consultant, a GP expert, and an A&E consultant.

All three experts concurred that the Claimant had received negligent treatment/advice and that there were a number of failings by the Hospitals/GP. In light of the supportive medical evidence, a detailed Letter of Claim was sent to all 4 Defendants.

The allegations of negligence

Against the Accident & Emergency department the allegations were:

• A) referred the patient to his GP when the hospital was the most appropriate place for treatment of this injury
• B) failed to refer to the patient to the fracture clinic
• C) failed to ask the out of hours orthopaedic team to review the patient.
• D) failed to ask the patient to come back the following day for imaging and review in A&E
• E) failed to make an appointment in the local trauma/fracture clinic within a week so that the injury could be reviewed by the orthopaedic service and then appropriate investigations and management could have been undertaken.

Against the physios it was alleged that:

• A) the physical findings should have precipitated an urgent referral to the local trauma/fracture clinic to enable the Claimant to be evaluated by an orthopaedic surgeon.
• B) Instead of this an appointment was made for 9 days later with another physiotherapist to undertake an ultrasound. This was inappropriate.

Against the consultant orthopaedic surgeon it was alleged that:

• A) There was a negligent failure to operate and repair the bicep
• B) Inappropriate advice was given to the Claimant to have his biceps tendon avulsion treated non-operatively.
• C) The claimant was not given the correct advice regarding his options and was given incorrect and over-cautious advice.
• D) The advice that it was more likely than not that a graft would be necessary and that there would be the risk of significant complications as the result of this was incorrect. The correct advice should have been that a direct repair operation (not a graft) was possible and that this had a very low complication rate.

Against the GP it was alleged that there was a negligent:

• A) failure to construct an adequate referral letter making it clear what the most likely diagnosis was (i.e. a rupture of the attachment of the biceps tendon, as recognised in the consultation note). The referral letter was inadequate and confused. The letter suggests that the problem was a “ligament injury”, which is not only quite different from the actual diagnosis, but also extremely vague and distinctly different from the provisional diagnosis made by the A&E department the night before.
• B) failure to make an immediate urgent referral to a local fracture clinic for consultant orthopaedic review. The referral to the physio service was completely inappropriate.

The Claimant argued that if the above breaches in duty had not occurred then he would have been diagnosed and operated upon within 1- 2 weeks of his injury. The Claimant would have had surgery performed as a day case under general anaesthetic. The biceps could have been re-implanted without any difficulties. The arm would have required protection in a sling for the first 6 weeks, supervised by physiotherapy. Gentle rehabilitation could then have commenced such that by the time 3 months after surgery had been performed a full range of movement would have been obtained.

The Claimant would have been able to return to all normal activities including heavy manual lifting at work by the time 6 months after surgery had been undertaken. He would not have lost his job.

The final case outcome

Defendants 1, 2 and 3 responded in January 2021 admitting liability. The Fourth Defendant (the GP) finally responded in March 2021 denying negligence.

Our medical negligence team commenced work on the Claimant’s Schedule of Loss, including liaising with his employer to obtain personnel records in respect of his loss of earnings. The Claimant’s Schedule of Loss was finalised and served together with an expert orthopaedic report on condition and prognosis. Within a few weeks NHS Resolution put forward a settlement offer in the sum of £53,000 plus payment of legal costs, which the Claimant accepted.

It was interesting to note that although the physios, the private orthopaedic surgeon and the GP are all private practitioners, the bill for their alleged negligence was met by the NHS itself. The Claim was concluded within 14 months of initial instructions being received.

If you have suffered errors and/or unnecessary delay in medical treatment which resulted in an injury you may be entitled to a compensation. For a free initial consultation with one of our medical negligence experts please call medical negligence experts please call 0330 822 3451 or request a call back online.