Six-figure settlement for family following failure to diagnose and treat deceased mother’s ankle infection

We have secured a considerable financial settlement for our clients who pursued a claim on behalf of their late mother. The claim related to a negligent delay in diagnosing and treating the mother’s ankle infection which caused her premature death.

In October 2017, our clients’ mother underwent surgery for a fractured left ankle which she had sustained following a fall. Metal plates and screws were implanted during her surgery. Afterwards, she attended physiotherapy but found that she had a persistent ache in her left ankle. After discussing her symptoms with her orthopaedic surgeon, she agreed for the metalwork to be removed on 22 May 2019. She was discharged home the same day.

The following day, she noticed that her left ankle was very painful. After discussing her symptoms with her family, she attended the emergency department at Worthing Hospital early in the afternoon.

At triage, it was noted that, despite pain medication, her left ankle was excruciatingly painful. Her pain was noted as being 10 out of 10. She was then seen and examined by a junior doctor. He noted her significant pain and, after discussing her case with an orthopaedic doctor, arranged an X-ray of her lower left limb.

The X-ray was performed shortly before 4pm. There was no fracture or dislocation of the ankle. The only significant appearance was of gas in the soft tissues, extending through her left calf. The reporting radiologist suggested review with an orthopaedic doctor.

Blood tests were taken, which showed that she had a white blood cell count of 22 (which is in excess of the normal range between 4 and 10), a neutrophil count of 19.5 (the normal range is between 2 and 7) and CRP of 8 (again, above the normal range of between 0 and 5).

A high white cell count and a high CRP can both occur after orthopaedic surgery. Therefore, on their own, those blood results were not abnormal. However, a high white cell count with an associated high neutrophil count is suggestive of an infection.

Our clients’ mother was admitted to the orthopaedic ward and examined by a senior orthopaedic doctor. He noted that her calf was tender and her ankle was swollen. His diagnosis was simply of post-operative pain. He recommended pain medication and to elevate her left leg.

At 11:13pm, observations were taken. On this occasion it was noted that she had a raised temperature of 38.6^oC. Her pain continued to measure 10 out of 10 despite a high dose of morphine. She was observed intermittently overnight. On each occasion it was noted that she was in excruciating pain.

The following morning, on 24 May 2019, she was examined by a consultant orthopaedic surgeon. He recorded in the medical notes that there was ‘no evidence of infection’. Because of her significant pain, he planned to keep her in and monitor her for signs of compartment syndrome.

At midday, she was re-examined by the orthopaedic surgeon. He noted that she had lost sensation in her left ankle and, when changing her wound dressing, recorded that the wound smelt unpleasant. She continued to be in significant pain, yet the doctors were still not concerned about an  infection.

At 1:30pm, she was reviewed again by a senior orthopaedic doctor. Her left leg was, by this point, very swollen and red. On examination her calf was very tender. It was noted that there was a ‘popping’ sound (known as ‘crepitus’). The doctor was concerned that she may have compartment syndrome. Blood tests taken at around that time showed that her white cell count had increased to 33.8, neutrophil count had increased to 30.1, and her CRP had increased to 312, all of which were significantly above normal limits and indicated a severe inflammatory response by her immune system.

She was taken to theatre for surgery, which was performed at around 4:45pm. During the procedure, the consultant orthopaedic surgeon found that her left lower leg was significantly infected. He attempted to clean and cut away the infected soft tissues, whilst also applying antibiotics. It was considered that she needed an amputation, and the plan was to transfer her to a specialist unit in Brighton.

Post-operatively, however, her condition deteriorated, as she became drowsy and barely able to respond to the doctors’ voices. Following transfer to the intensive care unit, she became tachycardic (her heart rate became very fast). Her deterioration continued, and she suffered a cardiac arrest. She died during the very early hours of 25 May 2019.

We accepted instructions to act on behalf of the deceased’s daughters after they had been informed that there would be an inquest into the cause of their mother’s death. After obtaining and reviewing the deceased’s medical records, we instructed medico-legal experts in orthopaedics and microbiology.

The experts held the opinion that the deceased had shown signs of infection from late afternoon on 24 May 2019 and that, when her temperature was shown to be elevated at 11:13pm, infection should have been considered as the primary diagnosis. Antibiotics should have been prescribed and further investigations, including physical examination of the deceased’s painful left calf, should have taken place.

One of the experts was of the view that had that step been taken, it would have revealed crepitus of the left lower limb. Taking that into account, as well as the significant pain, a high white cell and neutrophil count and a high CRP, the expert believed that doctors would then have concluded that the deceased had a serious infection; either necrotizing fasciitis or gas gangrene.

Both of these types of infection cause toxins to be released into the blood stream as the bacteria reproduce and multiply. The longer the infection is present without treatment, the greater the number of toxins released into the blood stream. Once the toxins reach a certain level, they can cause sepsis.

Sepsis (sometimes called blood poisoning) happens when the immune system (the body’s natural response to an infection) overreacts and, for reasons not fully understood, can lead to the immune system turning on the body. This can result in tissue damage and organ failure and, if not identified and treated quickly, can cause death.

Both types of infection, therefore, are a medical emergency and should lead to urgent treatment without delay.

At inquest, the coroner concluded that there had been a failure to suspect and diagnose the deceased’s infection at 11:13pm, when her temperature had been shown to be raised. This should have resulted in the provision of antibiotics and further management at that time. The coroner could not, however, say whether diagnosis and treatment at that time would have resulted in the deceased’s survival.

Following the inquest, we wrote to the defendant trust inviting an admission of liability. The trust responded and admitted that infection should have been diagnosed, but argued that the deceased would not have had surgery for her infection until around midday the following day. By that time, the trust argued, the infection would have become significantly advanced, sepsis would likely already have set in, and the deceased would always have died.

We obtained further evidence from experts in emergency medicine, who believed that infection should have been suspected when the deceased was in the emergency department, and from experts in intensive care and haematology, both of whom agreed that if antibiotics had been administered at around 11:30pm, and treatment had taken place before around 7am the following morning, the deceased would not have died. We presented, on a without prejudice basis, our evidence to the defendant, but the parties were unable to resolve the claim, and so court proceedings were issued against the NHS trust.  

At the time of serving the claim on the defendant, a schedule itemising the claim for compensation was also served. The claim had a maximum value of £250,000, which included a claim on behalf of the deceased’s estate, for the injury and losses suffered by the deceased up until her death, and on behalf of her dependants (our clients) for their loss of dependency on the deceased.

Prior to service of the defence, an offer to settle the claim for £80,000 was made by the defendant, on a without prejudice basis. We advised our clients that this offer was significantly below the value of the claim and, even accounting for the risk that the claim may not succeed in court, we advised our client to reject that offer.

The defence was then served. The trust admitted that it had been negligent in not suspecting infection at 11:13pm on 23 May 2019, but maintained that, even had that failure not occurred, the deceased would always have died because of the severity of her infection. At the same time of serving the defence, the defendant made an increased offer to settle the claim for £100,000.

It was curious that the defendant was offering not insignificant sums in settlement of the claim, at the same time as formally denying that its failure had caused the deceased’s death. We advised our clients on that offer and obtained instructions to enter into settlement negotiations. In response, we advanced an offer to settle the claim for £230,000.

That offer was rejected, and there then ensued a number of further offers between the parties. Ultimately, the parties were able to come to an agreement to settle the claim in the amount of £180,000.

This was a tragic case, which demonstrates the need for clinicians to pay close attention to all test results when examining patients with significant pain, which may be in excess of what would usually be expected following an uncomplicated orthopaedic procedure. If all of the investigations had been reviewed together and interpreted correctly, the deceased’s infection would have been identified within hours of her attending the emergency department. In the event, her infection was never actually suspected until the operating surgeon found the significant infection during the procedure on 24 May 2019, by which time it was far too late to provide life-saving treatment.

Our clients were adult children, but the loss of their mother was not easy for them to manage. We provided support to our clients throughout the process of investigating the claim and formally issuing proceedings against the defendant, until obtaining a substantial settlement on their behalf.

On the basis that the defendant formally denied the claim, and it was far from certain that our clients would succeed in proving that their mother would have survived her infection even if she had been diagnosed and treated earlier, this was an excellent settlement for our clients.

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