Chronic post-operative pain claim proceeds
Posted: 14th March 2014
The Court of Appeal has cut through a ‘procedural muddle’ and breathed new life into a substantial damages claim brought by a woman who alleges that her life has been blighted by constant pain since she underwent an hysterectomy at an NHS hospital.
The woman’s lawyers say that she would never have gone under the knife had she been properly counselled and warned beforehand that the procedure might trigger chronic neuropathic post-operative pain. They argue that she was in a high-risk category, having suffered abdominal and back pain in the past.
Her substantial damages claim against the NHS Trust which manages the hospital fell at the first hurdle when it was struck out by a district judge on the basis that it stood 'no real prospect of success'. The Court of Appeal overturned that decision and opened the way for her case to proceed to a full trial.
The Trust's legal team insisted that medics were under no duty to alert the woman to such an obvious risk and that the chance of a link being established between the operation and her chronic condition was slight. However, in allowing the appeal, the Court took into account the evidence of a consultant obstetrician and gynaecologist that there was a known risk of chronic post-operative pain following the relevant procedure and that she should have been warned accordingly.
Noting the confused procedural history of the case, the Court found that the Trust had failed to present a 'knock out answer' to the woman’s complaint. Lord Justice Richards concluded, "It may not be a particularly promising claim but I do not think that there was sufficient basis for stopping it from going ahead."