Professional negligence claim
We have had a professional negligence claim against Russell Young Solicitors. We took over the file from Burroughs Day who had already issued proceedings.
The issues were that the claimant’s VWF scheme claim had been under settled in relation to general damages and, in addition, the claimant had never been advised of his entitlement to a services claim under the scheme for tasks such as gardening, DIY, decorating etc.
The original letter of claim was lodged by Russell Young in April 1996 and an offer of £1,490 was received in April 1997. Following advice from his then solicitors, the claimant accepted the offer.
Burroughs Day then lodged the professional negligence claim in May 2002. The file was transferred to us in May 2003.
We managed to secure an offer from James Chapman in the sum of £16,301.95 net in December 2005 and this concluded the claim.
This case is similar to the Court of Appeal approach in Whalley -v- Montracon (December Law Bulletin ) in its sympathetic approach to unclear medical evidence and VWF causation issues.
It comes from our Belfast office.
The plaintiff worked in the fettling department for the defendant from 1996. It was accepted that he was required to use vibrating tools including a nibbler and a grinder.
Within months of starting this work, the plaintiff developed certain symptoms including pins and needles and cramps. He complained to his employer, whereupon he was moved to a different job within the same department which did not require the use of vibrating tools. His symptoms subsided although he maintained that they never completely disappeared.
As a result of reorganisation in 1999, he was moved back to fettling and within a couple of months his symptoms flared up again and continued to worsen. He attended with his own GP and with the company’s occupational health doctor, both of whom felt that he had symptoms of VWF. The plaintiff sought advice through his union, Amicus, in around January 2003 and court proceedings were issued in November that year.
There was a clear disparity between the two medical experts.
The plaintiff’s expert, Dr Ciaran Doherty, consultant physician, felt that the plaintiff had a diffuse sensorineural deficit that, while it did not amount to VWF, did amount to Stage1 of the Stockholm Workshop Scale.
On the other hand, the defendant’s expert, Mr Calderwood, a consultant orthopaedic surgeon frequently used by defendants in this type of case, was not prepared to accept that the symptoms described by the plaintiff indicated any objective abnormality that would fit into any medical condition and therefore his symptoms could not be attributed to the effects of his work activity. He indicated that, in the absence of any objective findings, he did not consider that there was any evidence upon which to base a diagnosis.
Dr Doherty stated that the absence of objective evidence of VWF or carpal tunnel syndrome, or indeed any circulatory component, did not rule out the possibility that the Plaintiff was suffering from sensorineural HAVS Stage 1.
It was his opinion, in the vast majority of these cases, that there were no objective findings but that a sound diagnosis could still be made. He drew analogies with conditions such as angina and whiplash type injuries to demonstrate that a medical diagnosis can often be made in the absence of objective findings.
He pointed out that, in all cases, a patient’s own account of their symptoms will be considered as evidence and in this case the plaintiff had given an entirely consistent account of his symptoms to three different health professionals on a number of occasions. Furthermore, the presence of a congruent history of exposure to vibrating tools and the non-emergence of any other causative medical condition also constituted evidence to be taken into account.
Mr Calderwood stated that, if the plaintiff was suffering from the condition, then he would have expected that, over a period of years, his condition would have progressed from Stage 1 to Stage 2.
Dr Doherty gave evidence that deterioration is a highly individual response and that the absence of progression was not a significant factor here. The Judge herself drew an analogy with conditions such as MS in which progression is accepted as variable from one person to another.
After hearing the evidence of both doctors and the plaintiff’s examination in chief,
The Recorder was persuaded by Dr Doherty’s opinion and indicated that she had found in the plaintiff’s favour on liability
Adrian Doherty -v- Transtec. Friday 25 November 2005 before Her Honour Judge Philpott Recorder of Derry.