In addition to his usual daily employment, Mr B worked as a bouncer a few evenings a week to supplement his income and support his large family. It was on one of these evenings that he felt something snap in his left upper arm which immediately felt painful and weak. The following day, his arm was still painful and a bruise had started to form just past his left elbow. Within 48 hours there was heavy red bruising around the arm and his bicep muscle appeared to be moving under his arm.
Mr B attended his local Accident and Emergency Department and was seen by an Emergency Care Practitioner. She examined his arm and diagnosed a partial rupture of his left bicep. She discussed the diagnosis with a doctor and then discharged Mr B with advise to rest the arm. Mr B accepted the advice but became concerned after a few months that his arm was just not improving so he consulted his GP who referred him to an Orthopaedic Surgeon. He was eventually seen by a specialist 9 months after the original injury and was diagnosed with a complete rupture of his bicep however secondary reconstruction at this late stage carried a 40 – 50% risk of nerve injury resulting in further permanent disability seriously affecting the function of his arm. Mr B was strongly advised against any surgical intervention and a subsequent ultrasound scan confirmed the diagnosis.
As a result of the continued weakness and discomfort in his arm, and the lack of treatment options, Mr B was unable to continue working as doorman and he continues to be at a disadvantage on the open labour market.
Initially Mr B made a complaint to the Trust about the standard of treatment he had received. The Trust’s first response was to advise that they had referred him to physiotherapy and had therefore discharged their duty of care. Mr B objected to this and following a meeting with the Trust, they conceded they could not confirm that a physiotherapy referral had been made. Mr B sought our help at this point and we agreed to investigate his case and offered him a “no win, no fee” agreement.
With the assistance of independent expert witnesses in the fields of Nursing and Orthopaedic Surgery, we discovered that there is a duty on examining clinicians to confirm or refute if a patient has suffered a total rupture. This would usually be by way of a scan or a referral to the fracture clinic so that the patient can be examined by an Orthopaedic Surgeon. There is some urgency in getting the diagnosis in an injury like this as repairs are easiest and most successful if carried out within 3 weeks in which case the patient will usually recover 95% of their original strength. A referral to physiotherapy would be inadequate when the nature of the injury has not been confirmed.
A formal Letter of Claim setting out our allegations was sent to the Trust and a full admission of breach of duty and causation was admitted within the 4 month pre action protocol period in which the Defendants have to respond. An initial offer of settlement was made in the sum of £10,000 however this was rejected because of the loss of earnings he had suffered in being unable to continue his door work.
Negotiations commenced and just before court proceedings were to be started the Defendants made a reasonable offer in full and final settlement of the claim.
The injury Mr B suffered is considered relatively minor. He had a good degree of function remaining in his arm. He was able to continue in his main employment and while being a doorman was no longer suitable for him, he was able to undertake other types of evening jobs if he wanted to in order to minimise his loss. Therefore the element of the compensation he received for the actual injury was assessed at around £12,500 meaning that he recovered over £50,000 in past and future loss of earnings.
It is not uncommon for injuries considered less serious than others to attract higher awards of compensation because of the impact the injury can have on other areas of a person’s life. Someone can have limited pain but they may suffer other restrictions in their life that they can be compensated for.
If you have suffered a similar injury, it is worth taking the time to get some from a specialist solicitor before dismissing it as being “not worth it”. Our solicitors are more than happy to discuss this with you.
Ashleigh Holt, June 2019