James Roebuck Frame Good Against Lanarkshire Health Board
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2015] CSOH 75 |
| Court | Court of Session |
| Published date | 09 June 2015 |
| Year | 2015 |
| Date | 09 June 2015 |
| Docket Number | A538/11 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 75
A538/11
OPINION OF LORD UIST
In the cause
JAMES ROEBUCK FRAME GOOD
Pursuer;
against
LANARKSHIRE HEALTH BOARD
Defender:
Pursuer: Primrose QC, Davidson; Thorntons Law LLP
Defender: Anderson QC, Neil Mackenzie; NHS Scotland Central Legal Office
9 June 2015
Introduction
[1] The pursuer, who was born on 9 June 1943, is a retired steel worker who suffered a traumatic amputation of his left hand and forearm in an accident in the course of his employment in the early 1980s. On or about 28 December 2004 he fell from a kerb in Wishaw as a result of which he sustained a basi‑cervical fracture of the neck of his left femur. He was admitted to Wishaw General Hospital for an open reduction and internal fixation operation. The operating surgeon achieved a satisfactory fixation at the operation site and the pursuer was discharged with plate and screws in situ.
[2] Treating surgeons at Wishaw General Hospital thereafter decided to treat the pursuer with a two‑stage procedure, consisting of removal of the metal work in the first instance and subsequently, after a gap of several months, a total hip replacement. He was admitted to Wishaw General Hospital for removal of the metal work on 29 November 2005, but the operation was cancelled that day due to lack of theatre time and x-rays were taken of his left hip. The pursuer’s name was put on a waiting list. On 25 July 2008 he attended Wishaw General Hospital for pre‑operative discussion of the planned surgery. On 16 September 2008 the operation to remove the metal work was carried out at Wishaw General Hospital. The pursuer subsequently developed a significant post‑operative infection which required urgent surgical treatment (debridement and removal of the implant) in early October 2008. The treating surgeon negligently advised that an attempt should be made to retain the implant. On 7 October 2008 another surgeon operated on the pursuer at Wishaw General Hospital in an unsuccessful attempt to debride the wound without removing the whole of the implant, resulting in ongoing sepsis. The whole implant should have been removed to minimise the risk of continuing infection. On 13 October 2008 the pursuer underwent a second debridement operation in the course of which it was noted that the whole joint was infected with a large amount of pus and that his proximal femur had been fractured. The operating surgeon removed the femoral component of the implant but negligently failed to remove the acetabular component.
[3] After these two operations in October 2008 the pursuer remained as an inpatient at Wishaw General Hospital. On 17 November 2008 x-rays were taken of his left hip. His wounds were regularly photographed thereafter. On 19 February 2009 he was moved to Udston Hospital in Hamilton for further inpatient care. His hip infection did not resolve. He continued to suffer and exhibit obvious signs and symptoms of chronic sepsis (such as a weeping or suppurating wound) without appropriate surgical intervention. From November 2008 until August 2010 he was unsuccessfully treated with prolonged courses of antibiotics. During that period he required urgent surgery consisting of full debridement of the infection site and removal of the acetabular component of the implant. Such treatment was negligently delayed until 2 August 2010, when the necessary operation was carried out. The pursuer was thereafter an inpatient for approximately 15 weeks, during which time his wound healed. The pursuer has not received another implant and there are no plans to provide him with one. He is therefore without a left hip. As a result of the negligent debridement operations and the negligent failure to organise appropriate surgery when he was suffering chronic infection the pursuer has suffered the loss and injury detailed below.
[4] The defenders having admitted liability, the case called before me for a proof on quantum. It was agreed that a multiplier of 10 should be applied from the date of the proof in respect of the calculation of future care and other costs, losses and expenses which will continue to be incurred over the remainder of the pursuer’s life. I heard evidence from the pursuer; his nephew Alan Carbray; John Biggar, a partner in Anderson Strathern, Solicitors and an accredited specialist in trust law; Jayne Brake, Director of Rehabilitation with J S Parker Ltd, Sheffield; Hannah Cairns, an occupational therapist; Sue Raine, a physiotherapist; Debbie Strang, also a physiotherapist; Fenella Parry, a case manager with JSP Scotland; and Helen Buri, a specialist in rehabilitation of people with orthopaedic injuries. With the exception of Helen Buri all these witnesses were led on behalf of the pursuer. Before I turn to consider the various heads of damages which have not been agreed I deal with the pursuer’s background, his injuries and their effect upon him.
The pursuer’s background
[5] The pursuer was brought up in Motherwell. He is unmarried and has no children. He left school at the age of 15 and went to work in steelworks in Motherwell. He lost his left hand and part of his left forearm in about 1980 when it became trapped in rollers. After that accident he worked on a weighbridge for three years. He was then made redundant and has not worked since then. He initially lived with his mother and then rented a council flat on the 21st floor of a high rise block in the Townhead area of Glasgow. He was able to do the household chores, shopping and decorating. He spent his time watching football on television, attending the football matches of the team he supported, going to the pub, playing pool, visiting his aunt and uncle in Morecambe and friends in Bridlington. He also visited his nephew and friends in Wishaw and stayed with his sister in Motherwell at weekends, but he could no longer stay with her as he could not manage the stairs. After the problems with his leg he became a resident in Kirknowe Nursing Home from April 2009 until April 2014, with the exception of the period of 15 weeks he spent in Wishaw General Hospital between July and November 2010. The accommodation in Kirknowe was unsuitable for him. His room was small, he spent most of his time in it watching television and he had a shower or bath only once a week. He was restricted in where he could go. Most of the residents were very elderly, some could not walk or speak and some were demented. He was the second youngest resident. He thought that there were too many women there. He moved into a house at 60 Roberts Street, Wishaw in or about March 2014. His nephew had found it for him on the internet and it had been purchased on 13 December 2013. The purchase price was £181,181, paid for out of a payment of interim damages from the defenders. Adaptations had been carried out to make it more accessible for a wheelchair user. It was near to the centre of Wishaw and convenient for the shops. The exterior and interior of the house are shown in the 33 photographs forming 6/60 of process. The pursuer’s care manager Fenella (Fen) Parry had organised the care package for him when he moved in. He was looked after by three carers a day. The house was bigger than the flat in which he had previously lived and a lot dearer to run. His nephew had acquired a vehicle for him so that he could be taken on trips by the carers. The pursuer loved his new house and was happy with the care set-up.
The pursuer’s injuries
[6] The pursuer’s injuries are detailed in the medical report 6/3 of process dated 12 May 2013 (when he was living in Kirknowe Nursing Home) by Professor T W R Briggs, Consultant Orthopaedic Surgeon at the Spire Bushey Hospital in Bushey, Hertfordshire. He recorded his examination of the pursuer as follows:
“A pleasant gentleman who is able to sit in his chair comfortably and is able to walk. When he does so he leans on his Zimmer frame which has gutters for the forearms. He walks with a significantly short left leg, standing on tiptoe, and the leg is significantly externally rotated.
When he moves to the bed, he has an electric bed which he can elevate at the head end. He also has a monkey pole and an arm holder which he can use to manoeuvre himself around the bed. He is able to remove his trousers using his right arm and then uses the extensor support to remove his trousers, using his right hand. To manoeuvre himself around the bed, once he has elevated the head end, he uses the monkey pole in his right arm to manoeuvre himself into the middle of the bed. However, he is unable to put his socks on, although he can remove them. Every morning the carers put his socks on for him.
When he lies flat, his left leg is short and lies in about 80% of external rotation. He has no neurovascular deficit in the feet with excellent power of dorsiflexion and plantar flexion, and both posterior tibial pulses are present.
Looking at his right hip, it will flex from 0-100°. He has full extension, abduction 40°, adduction 30°, internal rotation is to 10°, external rotation is to about 75°.
Looking at his right knee, it is well-aligned. He has no effusion, a range of movement of 0/0/130°. There is no joint line tenderness and no instability. Alignment of the right leg is excellent.
Looking at the left leg, all the shortening lies above the knee.
Looking at his left hip, he has a 30 cm well-healed scar that has clearly been opened on multiple occasions. The left hip lies in fixed external rotation of about 70°. He has a fixed flexion deformity of about 15° and the hip will not actively flex and will not passively flex. He has no active or passive abduction from neutral. He has a jog of adduction. The hip, from its fixed position in about 75°of external rotation, has no further active or external rotation.
On examination of the left knee, it will go fully straight but will only flex to about 70°there is no pain to palpation. The knee is stable to valgus/varus stressing and stable to...
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