In the Autumn of 2006, a young aspiring RAF candidate was playing cricket. The batsman caressed the ball and when our client dived to make a catch, he landed awkwardly and felt pain in his shoulder. He was referred to a sports physiotherapist who recommended some exercises. In early 2007, he received a letter from the physiotherapist informing him that he had a tear in his labrum (the rubbery cartilage tissue attached to the rim of the shoulder socket that helps keep the ball of the joint in place). He was then referred for an MRI scan in 2007 which apparently showed that the labrum was completely normal.
Varied incorrect diagnoses
In December 2007 he was then told that he may be suffering from juvenile chronic arthritis and was referred to a rheumatologist. On attending a rheumatology appointment in March 2008, he was informed that he was possibly suffering from inflammatory arthritis. Following these several and varied diagnoses, he grew increasingly concerned as the treatment did not seem to be improving his health and he was beginning to lose movement in his shoulder.
He was discharged from orthopaedic care but continued to receive rheumatology input. During a rheumatology appointment in 2008, he was also referred for an x-ray which showed that he had a tumour. The x-ray results were compared with the MRI scans taken in 2007. The tumour was clearly present and visible in those 2007 scans but had been missed.
Misdiagnosed tumour has life-long consequences
Thankfully, following an urgent biopsy, the tumour was found to be benign, but because of the delay in diagnosis and treatment, he now has a misshapen shoulder with loss of contour, muscle wastage and has significantly reduced movement in his left shoulder. Had the tumour been correctly diagnosed in the initial MRI scan, it could have been treated much sooner and would not have grown. On the balance of probability, he would have regained excellent function and he would have returned to the cricket field.
Long term, he is now likely to develop degenerative arthritis in his shoulder. He will also require shoulder replacement surgery by the time he is 50 years old and it is unlikely that he will regain any further movement following that surgery. His aspirations to join the RAF have been dashed since he would not pass the medical test to be considered fit for service.
Previous law firm mismanaged his claim
He sought legal advice from another firm of solicitors, whom he instructed to investigate a clinical negligence claim for the failure to diagnose the tumour sooner, the fact that he underwent unnecessary arthroscopic assessment and received unnecessary treatment for arthritis. The firm of solicitors agreed to act for him and subsequently instructed an expert to prepare a breach of duty report, which was entirely supportive of his claim.
This should have culminated in a letter of claim being served and the case progressed in pursuit of adequate compensation to help make his future better, but the firm of solicitors he initially approached failed to issue court proceedings within the relevant three-year time limit. The acting solicitor also failed to seek an extension of time from the court and consequently our client was unable to take his entirely meritorious claim any further.
Turning to Shoosmiths for help
Disappointed with the service provided by both the medical and the legal profession thus far, he finally approached Shoosmiths for help. The case was managed by the clinical negligence team in Shoosmiths’ Thames Valley office. Following a subject access request for our client’s data from the previous solicitors, it soon became abundantly clear that there was a strong case for pursuing a professional negligence claim against them. The previous law firm initially attempted to defend the claim on the grounds that the original claim for clinical negligence would not have been successful, even if the claim had been served within the statutory time limit.
This was a strange position, as it was contrary to the opinion of the very experts the previous firm consulted. The counsel whose advice had been sought at the time also felt that the client had a strong case which, had it not been for the failure to issue within time, would have resulted in him winning substantial compensation.
As the claim was defended, the case was listed for a five-day hearing at the High Court. Eventually, matters were settled at a Joint Settlement Meeting. Our client received a six-figure settlement in respect of his professional negligence claim which is some small recompense for the mishandling of the clinical negligence claim he ought to have made and won at the outset.
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2023