Substandard Treatment

Advice and Assistance from Cohen Cramer

Substandard treatment: We acted for a Claimant in relation to a claim against the Defendants for injuries arising out of clinical negligence. Shortly after receiving instructions, the Claimant died for reasons unrelated to the events giving rise to her claim. Following a Grant of Probate, the claim continued on the instructions of the Executors of the Claimant’s estate.

The background to the claim was that the Claimant received treatment at a Hospital and thereafter from her GP following a fall. The Claimant was approaching 92 at the time of the accident and she had a complicated pre-existing medical history, including vascular dementia and she had some difficulties with communication.  She was resident in a care home at the time of the accident and wheelchair bound.

Breach of duty

The Claimant complained to a member of her care provider that her right ankle had become very painful. Upon investigation, there was noted to be significant swelling around the ankle. The care home contacted the Claimant’s GP surgery and was advised by telephone that the Claimant should attend A&E as an x-ray was required.  During a second call that day, when the Claimant’s carers relayed that the Claimant did not wish to attend A&E, the Claimant`s GP agreed to visit. During the visit, the GP examined the ankle and noted it to be deformed and swollen. She also noted the Claimant was tender over the lateral malleolus and at the base of the 5th metatarsal. The Claimant was referred to A & E.

Failure to x-ray

The Claimant was seen in A&E. Her notes recorded that she was non-weight-bearing and complaining of pain in the right ankle. The history of a “fall yesterday” was noted. On examination, the ankle was noted to be swollen. Bony tenderness was noted at the fifth metatarsal. On an x-ray request form, an ankle x-ray was initially requested although that was then crossed out and replaced with “foot”. The foot x-ray revealed no fracture and the Claimant was discharged.  She was in A & E for less than an hour and her ankle was not x-rayed. In fact, the Claimant had suffered a displaced comminuted fracture of the distal tibia and fibula. That was not picked up as no ankle x-ray was done.

The Claimant returned to the nursing home and continued to complain of pain in the ankle/lower leg every day. She was noted to be very distressed with it being noted by her care provider that she was calling out in pain in relation to her ongoing symptoms.

As the pain continued, the Claimant’s GP was asked to attend. No tenderness was discovered in the lower leg/ankle area despite the recent comminuted fracture of the distal tibia and fibula. No ankle x-ray was arranged. Thereafter, the Claimant continued to complain of daily pain in her leg. Her carers noted that she was whimpering and still in a lot of pain. Subsequently, it was noted her foot was very swollen and very hot to touch. She was crying and complaining of pain her right leg. She continued to complain of leg pain thereafter.

Continued failure

A different GP attended but still, no ankle x-ray was recommended or arranged. At a later date, the first GP reattended and was told by the Claimant’s care providers that they were concerned the ankle was broken in the original fall as the ankle was still deformed and a lump had formed, together with the making a clunking sound. On examination by the Second Defendant, it was noted the ankle was deformed and the Claimant had pain when moving. There was a lump in the distal tibia and fibula. Only then was an ankle x-ray arranged. An x-ray of the ankle was then carried out the same day and it revealed a fractured distal tibia and fibula with callus formation. The Claimant underwent manipulation under anesthetic and was treated in a plaster cast.  That was two months after the initial injury.


The Claimant alleged that the treatment and care provided to the Claimant by the hospital and the two GPs was negligent, in that they failed to carry out an adequate and thorough examination of the Claimant’s ankle/lower leg; failed to take into account, adequately or at all, the limitations of the examination that was carried out because of the swelling and/or the Claimant’s pre-existing conditions and functional restrictions; failed to have any or any adequate regard to the fact that given the Claimant’s age, there was a significant chance she would suffer from osteoporosis; failed to adopt a low threshold for suspecting a fracture and requesting x-rays and thereafter failed to arrange adequate x-rays, including specifically an x-ray of the Claimant’s  ankle; failed to diagnose an ankle fracture.


As a result of the negligence, the Claimant’s fracture was missed for approximately 2 months. During that period and thereafter, she experienced significant pain and discomfort.

Had the fracture been picked up earlier, the Claimant’s leg would have been immobilised preventing the fracture from becoming more displaced and reducing the pain and suffering she experienced. As a result of the matters set out above the Claimant, who was 92 at the time of her admission, suffered pain and injury and sustained loss and damage.

Following her discharge on the 13th December 2013, the Claimant continued to experience significant pain, discomfort and swelling which was badly managed with painkillers. She was completely unable to mobilise and what little mobility she had was lost.

Death of the claimant

Unfortunately, instructions were received that the Claimant had died and it was at this stage that the Executors took over management of the claim on the Claimant’s behalf. In light of the Claimant’s death deliberation was given to the merits of the claim and instructions were given to Counsel to advise in relation to liability, the risks and the merits of the claim moving forwards. Counsel’s advice was considered which was supportive of the claim.

It was necessary for medical evidence to be obtained in support of the Claimant’s claim from an Orthopaedic Surgeon, an Accident and Emergency Expert, a Consultant Radiologist, and a GP. to Dr Lieberman, Clinical Negligence expert.

Letters of claim were sent out to the hospital and the two GPs. Breach of duty was subsequently denied by all three Defendants.


Upon receipt of the letters of response from all parties and finalised medical evidence, Counsel was further instructed to consider liability and quantum. The Claimant had previously obtained Counsel’s advice on quantum and had made Part 36 offers to all 3 parties in the sum of £5,000.00 in an attempt to encourage early settlement. The claim ultimately settled for £4,000.

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