How A Bin Bag Led To Medical Negligence And A Misdiagnosed Fracture

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The Law Of… Receiving The Correct Treatment

A Simpson Millar client got more than she bargained for when a tussle with a bin bag resulted in a trip to A&E. Victoria Clark, a Medical Negligence Solicitor, details a case where a missed diagnosis led to unnecessary suffering and a claim for clinical error.


Battered By A Bin Bag

Early February, 2014, and Simpson Millar's client, who wishes to remain anonymous, found herself waiting for an x-ray at her local Accident & Emergency department.

She had caught her foot in the tie handle of a bin bag, subsequently tripping, falling and bringing all her weight down onto it. With severe pain concentrated in the region of her foot and ankle, the client visited the hospital to get it checked out.

The results of her x-ray reported no fracturing and she was described as sustaining a sprain. For this she was given a leaflet that recommended 'picking up a tea towel with the affected foot numerous times a day' as treatment, before being discharged. There was also a referral for physiotherapy, where she twice underwent an extremely painful application of electrical currents to her big toe.

Return To A&E

As time passed and the pain and discomfort showed no signs of diminishing, the client revisited the A&E and was x-rayed once again.

This time she was diagnosed with a mallet toe injury involving an avulsion fracture to the big toe, with some of the bone having been pulled away by nearby ligaments. There was also a comminuted non-displaced fracture to her foot, where there were numerous pieces of bone. She underwent corrective surgery later that year.

Alleged Breaches In Duty Of Care

The client arrived at Simpson Millar, looking to make a claim for the medical negligence and subsequent suffering she had endured. Victoria Clark took on the case and a Letter of Claim was sent to the hospital trust responsible.

It was alleged the hospital trust had breached its duty of care by:

  • Failing to carry out a thorough investigation of the initial complaint
  • Incorrectly diagnosing the fracture as a sprain
  • Failing to provide the correct treatment
  • Potentially aggravating the injury further with negligent advice and a referral for physiotherapy.

These breaches of its duty of care caused the client to experience avoidable pain and suffering, which eventually required surgery to correct.

Breach Of Duty And Causation Denied

The hospital trust denied there had been a breach of duty, claiming the assessment of the client's injury was appropriate in accordance with its procedures and the radiology report.

The hospital trust also denied causation of the client's pain and suffering, adding that the delayed diagnosis made no difference to the outcome and corrective surgery would have been necessary regardless.

A 'Time Bomb' Offer

Having obtained supportive independent medical evidence on breach of duty and causation, Victoria Clark pressed on with the claim.

Following further negotiations an offer to settle, approved by the client, was put to the hospital trust. Referred to as a 'Time Bomb' offer, it notified the trust of the client's readiness to accept a specific amount to put an end to the claim. The trust had a shorter period of time – a few days – in which to agree to this before it was withdrawn, hence the 'time bomb' label.

The offer was successful and the client received the agreed amount in full and final settlement.

Victoria comments:

"Thankfully, the vast majority of admissions to Accident & Emergency departments throughout the UK are seen, correctly diagnosed and treated without further complications due to negligence."

"On the rare occasions this is not the case, it is important that patients have an opportunity to obtain some form of redress for their pain and suffering, along with any financial loss they have undergone."

"What this particular case illustrates is that patients should not be afraid of questioning a medical opinion if they think it might be incorrect, or if they think their symptoms need further investigation. Nobody is infallible and sometimes, as happened with this client, the healthcare professional calls it wrong. Seeking justice after such an event can help to ensure the checks are put in place to prevent it happening again."

If you have been misdiagnosed and suffered further injury as a result, you may be entitled to compensation. Contact our Medical Negligence team and discuss your case today.





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