Shoosmiths successfully achieved a settlement for a 12 year old child, who sustained two burn marks on her back having undergone routine adeno-tonsillectomy surgery. The surgery was performed at St George’s University Hospitals NHS Foundation Trust, with the intention of treating her snoring condition.
Following a GP referral, our young client attended an appointment with an ENT Consultant at St George’s University Hospitals NHS Foundation Trust with a history of nocturnal snoring since early childhood, which had recently worsened. There was no relevant medical history that indicated that surgery was required. Despite this, her parents were advised that she would be an ideal candidate for tonsillectomy under general anaesthesia.
Mystery burn marks appear on the back
During the overnight hospital stay following the procedure, which initially seemed to have been uneventful, the child complained to her mother that she had itching and a burning sensation on her back. However, no one examined her back as it was thought she was in pain and shock following the surgical procedure. Once she was back at home, our client’s mother noticed that there were two symmetrical inflamed burn marks on her daughter’s back, approximately 2 to 2.5 centimetres in diameter.
Meetings with the hospital provided no explanation as to the origin of the burns on an area of the body that should not be susceptible to injury during a routine adeno-tonsillectomy procedure.
The child had to attend dermatology and plastic surgery clinics for further topical treatment of the scars and underwent intralesional steroidal injections. Unfortunately, plastic surgery was not an option to treat the hypertrophic scarring. The lack of confidence in her body image due to the scarring, particularly during the teenage years, obviously affected her morale and she was diagnosed with an Adjustment Disorder with depressed mood.
Turning to Shoosmiths for answers
From the initial stages, the case was led by Jill Davies, principal associate in Shoosmiths’ medical negligence team. Despite the defendant Trust’s complete and continued denial of liability, Jill managed to reach a satisfactory settlement for the client.
Several medical experts, including ENT and plastic surgeons, a tissue viability nurse, and a psychiatrist were consulted. Experts agreed that the origin of the burns was suspicious, but also that the likely cause of the burns was iatrogenic (i.e., it had been caused by medical examination or treatment) through diathermy heating (electrically induced heat or high-frequency electromagnetic currents used in surgical procedures) or alternatively through pressure and / or chemical exposure. One of the experts noted:
“It is clear that somebody using the diathermy point applied it to the patient’s back, causing a burn and the subsequent scarring... The history and appearance of the scars suggests that whoever applied a hot instrument to the patient’s back, knew what they were doing. The scars are very precisely placed on the patient’s back equidistant and level one with the other. This does not occur naturally. Accidental scars are not symmetrical.”
Lack of genuinely informed consent
For several years, the Trust denied liability. They attempted to argue that it was impossible to ascertain the cause of the soft tissue damage to our client’s back, and to prove that the burns were sustained during the adeno-tonsillectomy procedure. We maintained our position and also argued that the consenting process was poor, in that our client’s mild snoring condition did not justify the need for a tonsillectomy, particularly because the risk of the surgical procedure under general anaesthesia outweighed the benefits.
This had not been explained to our young client’s father during the first and only consultation with the ENT Consultant, who equally failed to explain and explore alternative, more conservative treatment options. Despite the fact that we argued that the surgery was unnecessary in the circumstances, the defendant Trust continued to deny any fault in the consenting process. However, the Trust eventually offered a suitable settlement, although liability continued to be denied even during the settlement negotiations.
Our client and her mother, who had been pursuing the case as the child’s litigation friend until she reached the age of 18, said:
“My daughter and I are both very happy with the outcome. I am glad that we can finally start to get closure on what she experienced at the hands of St George’s Hospital. It was sad to see that it took so very long to settle when they had apologised to my daughter in the first meeting, then backtracked and made her go through so many appointments with several professionals. Shoosmiths invested a great deal of time and effort in her case, which we are both very grateful for.”
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 2022