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Prosthesis selection in an amputation case

Miller v Imperial College Healthcare NHS Trust
High court
14 October 2014

David Woolley and Andrew Cousins examine a discrete point arising in a clinical negligence case involving the amputation of a 63 year old claimant’s leg. When considering the claimant’s needs in respect of an appropriate prosthesis the judge was seeking to return the claimant as closely as possible to the position she would have been in had she not suffered the amputation. Miller v Imperial College Healthcare NHS Trust (2014)

Background

The claimant brought a claim against the defendant alleging negligent treatment. The claimant had attended the defendant’s Hospital and was complaining of pain in her left leg which was cold, blue and white in appearance. The claimant needed to undergo vascular treatment but was discharged and upon her re-attendance a few days later the opportunity for successful treatment was lost.

The claimant eventually required an above the knee amputation which could have been avoided had competent care been provided. Liability was admitted and the court was required to determine damages. The court was faced with various heads of loss, however a significant part of the damages hearing was concerned with the choice of prosthesis. The claimant had opted for the Genium prosthesis which was more than double the cost of the alternative, the Orion prosthesis. 

Findings

The claimant was aged 63 at the time of the amputation and His Honour Judge Curran QC found she had acted reasonably in choosing the Genium prosthesis. The claimant was a fit, healthy and lively person who enjoyed an active social and family life before the accident. The first prosthesis which the claimant had tried was inadequate and could only be worn for short periods of time leaving the claimant reliant upon crutches.

Whilst a less expensive prosthesis was available the cost of the more expensive prosthesis was recoverable in full. The more expensive prosthesis had been chosen entirely based on the claimant’s consideration of the very real difference the claimant considered it made to her life.

The court considered that the claimant needed a prosthesis which would place her in the same position as she would have been in had she not suffered the amputation. Having viewed DVD footage of the claimant using both prostheses the court concluded that the more expensive Genium prosthesis was the most appropriate one for the claimant and thus awarded her the sum for its cost. 

Comment

The case is a reminder that the purpose of damages is to put the claimant back in the position she would have been had the accident not occurred. Defendants will face increasing difficulty in avoiding claims for what appear for now to be ever more expensive prosthetics. Although, it will still be for the claimant to demonstrate that the prosthesis she has elected assists her more and puts her closer to the position she would have been had she not lost her limb. What is the choice available on the market? Has the claimant trialled the different types of prostheses available? Has she established benefit from the prosthesis she has elected?

Defendants should be encouraged to engage not only with claimants at an early stage but also with the new technologies. The better the understanding the defendant has the sooner an assessment can be made of the benefits / appropriateness of what is available on the market. Just as the claimant will likely ask her medico-legal expert to assess the technologies at the same time as the treating clinician so should the defendant.

By David Woolley and Andrew Cousins

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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