Claim for knee replacement surgery with no prospect of success

We have recently settled a claim for substantial damages against East Kent University Hospital NHS Foundation Trust following a knee replacement that left our client with significant pain and reduced function.

Our client had a road accident back in the 1960s in which his left femur (thighbone) was fractured. He underwent standard surgery at that time, which left him with a permanent and significant deformity – the fracture healed in a position that was bent inward towards his other leg (varus) and backwards (recurvatum). For decades, this caused him no problems, but changed the natural wear and tear in his left knee and led to early arthritis. This became painful, although did not limit what he could do. Over time, the pain increased and in 2010 he was advised that a knee replacement could resolve his pain. He asked at the time whether his deformity would be a problem, but was reassured by the surgeon that the type of knee replacement being recommended was bespoke to him and could compensate for the deformity without any problem.

In fact, like any knee replacement, the prosthesis that was implanted was not bespoke, but standard. The patient-specific element of the procedure lay in measuring the position in which the prosthesis would be implanted and in the equipment to achieve that position. There was no criticism of this technique, or the way it was carried out. Our expert evidence, however, was that replacing this patient's knee without correcting his deformity held almost no prospect of resolving his symptoms; to advise him otherwise had been negligent. 

The defendant relied on expert evidence that the approach the surgeon took in our client's case was entirely reasonable in the circumstances. This was despite being unable to produce any academic paper reporting successful treatment by knee replacement alone of symptoms such as our client suffered with the degree of his deformity.

Following the knee replacement, our client's symptoms were worse – not only was his pain increased, but he was restricted functionally. Having worked as a carpenter until the day before the operation, he was unable to go back to work because he was very limited in the degree to which he could bend his knee.

The surgeon later tried to manipulate the knee surgically, but to no avail. Only then did he acknowledge that our client's pre-existing deformity was causing stiffness and pain and that further surgery was needed to straighten the femur before revising the knee replacement to line it up properly with our client's hip. The surgeon referred our client to another surgeon for this procedure, which was by then, however, complicated because of the knee replacement that had already been performed. As a result, the outcome of the revision surgery was only very limited improvement for our client compared to the results he could have expected had the correct surgery been performed in the first place. He was never able to resume working and needs long-term care and assistance because of the impaired mobility he continues to suffer.

The NHS denied negligence throughout this case, despite settling it for just under £100,000 shortly before it was due to be heard at a trial in the High Court.

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