Substantial damages for negligent management of foot fracture

We have recently settled a claim for substantial damages against Western Sussex Healthcare NHS Foundation Trust following its failure to act on signs and symptoms of fracture to our client's foot.

Our client was aged 50 and had long-standing Type 2 diabetes. He worked driving HGV vehicles for a company specialising in transporting construction equipment. After work one day, he jumped down from his lorry as usual and felt he landed heavily. When he arrived home a little later, he removed his work boot to find his foot immediately swelled and was painful.

The next morning he was no better and went to the Minor Injuries Unit at Horsham Hospital with his wife, where he explained what had happened. He was told he might have a deep vein thrombosis (DVT) and sent to Crawley Hospital to be investigated. No DVT was found.

No record was made of the injury being associated with possible trauma the previous day and nothing was done to investigate further the reason for his pain and selling. He was sent home.

The pain and swelling continued and a few days later he went to see his GP, who relied on the hospital's findings and suggested resting the foot. Over the next few days, the pain and swelling did improve slightly. After a week of resting, our client tried using it again, but the pain and swelling immediately returned.

He then went to Worthing Hospital and explained what had happened and the problems he had had since. It was noted that DVT had already been excluded and the doctor diagnosed a soft tissue injury. He arranged blood tests, but sent our client home before the results were available, with some painkillers. No other tests or investigations were arranged, despite our client and his wife asking whether an X-ray was needed. In fact, his blood sugar was dangerously high and the hospital called to advise our client that he needed to see his GP urgently. We later obtained expert evidence that our client should never have been discharged until his blood sugar level had been brought under control.

Our client, by then with lower blood sugar, did see his GP who noted the hospital had diagnosed a soft tissue injury. He suggested our client needed to use his foot to try to improve things. Over the next ten days, his foot became increasingly painful and swollen, and more and more difficult to walk on.

He went back to Horsham Hospital and was noted to have a red, warm and swollen ankle, and again, a raised blood glucose level. He was told he needed to be seen in the Medical Assessment Unit (MAU) at Worthing Hospital, where he went straightaway. At Worthing, however, he was not seen in MAU and instead was sent for DVT assessment. DVT was again excluded, and he was sent home, despite having high blood sugar.

Our client remained with significant pain and swelling affecting his mobility and work. Six weeks later he went back to the GP because he was getting no better. He was referred for assessment in the vascular service at Horsham Hospital. Another six weeks passed before that appointment, but this eventually led to an X-ray. His GP received the X-ray results and referred our client to the orthopaedic team where he was finally seen a month later, and told he had a fracture in his foot.

By then, the length of time elapsed since the injury five months earlier meant the bone had dropped down and was pressing against the skin on the sole of our client's foot, which led to ulceration. The ulcer became infected and had to be surgically debrided to remove infected tissue. Our client had repeated attendances at his GP and in hospital because the ulcer was very slow to heal. 

In the months that followed, he experienced a number of recurrences of ulceration. He avoided putting weight through that foot, which in turn affected his movement and which he considered then led to a tear in a calf muscle of his other leg.

We instructed an expert to assess the standard of care our client had received in A&E/ Minor Injuries at each of the hospitals involved. He was critical of the care and considered this fell below the standard the hospitals should have achieved. We then instructed an orthopaedic expert to assess the impact of the substandard care. At the time of the first attendance, it was unlikely that the fracture would have been evident, but by the second and third attendances, his care should have included taking X-rays and immobilising his foot in plaster. Had this been done, the orthopaedic expert whom we instructed considered that foot shape would have been well preserved and our client would have made a good recovery. He would have avoided the ulcers. The expert also considered the delay in treating the ulcer meant that our client was at increased risk of future ulcers at the same site because of his misshapen foot. The bone alignment was improved with further surgery, but some risk remained. The expert considered that ulceration was likely to continue from time to time. Our client's diabetes made it more complicated to treat ulcers successfully so that he was at increased risk of amputation.

We wrote to both hospitals to set out the care our experts considered our client should have received and explained that this should have led to earlier immobilisation and thus, a far better outcome for him. Both hospitals replied to deny any liability for negligence in our client's care, which they argued was entirely acceptable in the circumstances.

We therefore had to issue court proceedings to progress the case. After serving proceedings on the trust responsible for Worthing Hospital, it admitted that it had failed in its duty to our client and should have arranged earlier X-rays and immobilised his foot. It accepted this would have led to a better outcome at an earlier stage but  denied that the sub-standard care was the cause of any increased risk of future amputation. Protracted arguments ensued in which the hospital relied on expert evidence to argue that our client was very likely to end up with an amputation, but that this was not because of the negligence in his care. Our expert accepted there were other factors at play, but believed that any future amputation stemming from ulceration at the site of the fracture would be directly attributable to the negligent care.

The case eventually settled, a few months before a High Court trial, for over £80,000. This was more than twice the defendant's opening offer.

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