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Negligently performed biopsy curtailed firefighter’s career

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Our client, a female firefighter, consulted her GP about a lump she discovered on her neck. She was referred for an ultrasound scan where a cytology report raised the possibility of lymphoma and recommended a full biopsy to investigate.

She was offered a biopsy at a relatively early date, but because it was not made clear to her that she might have cancer, she postponed the biopsy until she had returned from a holiday she had booked. She finally underwent a total excision of a superficial lymph node in the left side of her neck. 

Unfortunately during that procedure her spinal accessory nerve was damaged which resulted in permanent weakness in her dominant left shoulder (she is left handed) and a dramatically increased vulnerability to fatigue. Any injury to the spinal accessory nerve can cause extreme pain around the shoulder as well as weakness of the shoulder girdle and numbness below the chin. In many cases, this severely limits a person’s ability to undertake even the activities of daily living such as ironing, lifting heavy pots and pans in the kitchen or carrying out other general household tasks.

The impact on our client’s career in the fire service was devastating. She could no longer physically perform many of the tasks expected of a firefighter without extreme discomfort. Immediately following the surgery she was unable to return to her fire service job for six months. When she did return, she was placed on restricted duties and reduced hours, remaining so for almost two years before she was certified fit. She did return to her previous role, but struggled sometimes.

She approached Shoosmiths for help and Alex Haider, a specialist medical negligence solicitor handling this case, said:

‘Usually, when considering a claim we seek expert medical evidence to get a likely prognosis so we can look at the best rehabilitation regime for the client, although in this case the fire service had stepped up  to offer that support. However, the medical expert reports are also essential to informing the likely value of any possible claim.’

Several medical experts, including a neurologist, an occupational therapist, an otorhinolaryngologist (a specialist in the disorders of the ear or nose or throat) were consulted. Orthopaedic experts for both sides agreed that the weakness in her shoulder would be exacerbated with age and that, even with the best rehabilitation support in place, she would have to retire from the fire service far earlier than she had planned. That depressing fact obviously affected her morale as well as impacting upon her future earnings potential.

The defendant NHS Trust attempted to argue that nerve damage is a known risk of this surgery, but eventually conceded that our client’s injury had indeed been a consequence of substandard surgical technique. Alex also argued that our client had not given her ‘informed consent’’ for such a procedure, since not all the options were explained to her and she was not told of the risk of nerve damage until the morning of the operation. Alex explains:

‘There were alternatives to this procedure, such as fine needle aspiration, a core biopsy or a small incisional biopsy. It’s possible that our client would have chosen any of these options had she been made aware of the risks involved in the total incision procedure, but she was never given that opportunity.'

A trial date was fixed and Alex started to prepare papers, but as is often the case, an imminent trial concentrates the mind of the defendant. While there was no formal admission of negligence on the part of the defendant Trust, a substantial six figure settlement that will help with make our client’s future a little more financially secure (despite the cruel curtailment of a career she loved) was agreed some weeks before the case was due to go before a judge. Our client is fulsome in her praise of Alex and Shoosmiths:

‘From the moment Alex took on my case, I was fully involved and informed and everything was explained to me. Alex understood my emotions and encouraged me along the way - basically doing more than I ever could have imagined.’

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