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Today we look at an out of Court settlement achieved on behalf of Mr. N. in respect of injuries as a result of incorrectly performed acupuncture. The case demonstrates that the remit of clinical negligence is not restricted to incidents involving a GP, Hospital, or Dentist, but anything that falls under healthcare, including private treatment providers.
Suffering from historic back pain, Mr. N. decided to look into alternative treatment options, landing on the door of acupuncture, something which he had tried with some success previously. The matter was resolved without the need for litigation in the sum of £10,000.00 once the treatment provider’s medical malpractice insurer became involved.
Case Summary
Mr. N. had a history of chronic pain associated with a historic rugby injury together; in early 2021 he decided to try treatment outside the remit of just analgesia and elected to undergo acupuncture having had some previous success with this. Following some online searching and reading positive reviews, he arranged to attend a local acupuncture therapist in April 2021.
On attendance, Mr. N. was given very little in the way of explanation as to the procedure, or associated risks; he noted that the acupuncturist was extremely confident, to the point of over-confidence perhaps in hindsight. During the procedure, a needle was placed between the left shoulder blade and spine causing some level of spasm as it was flicked into his tissue but nothing initially concerning; however, when he was instructed to take a deep breath for the insertion of a second needle, Mr. N. experienced very sudden, odd, and sharp pain at the sight of the previously positioned needle.
As the session continued, Mr. N. began to experience chest pains and lightheadedness however was reassured by the acupuncturist that this related to side effects of the treatment. Mr. N. left the session and experienced progressively worsening chest symptoms to the point of experiencing bubbling sensations, continuous coughing and fatigue, ultimately suspecting he had contracted SARS-CoV-2 and had developed COVID-19 although tests confirmed this was not the case.
Due to Mr. N.’s progressively worsening symptoms, he contacted his general practitioner around a week after the acupuncture session and was immediately referred to Accident & Emergency where it was confirmed he had suffered a pneumothorax attributed to the acupuncture treatment.
On receipt of instructions, we began collating Mr. N.’s medical records from the various providers including the acupuncturist who, despite correspondence making it clear they should contact their insurers and seek legal advice, decided to attempt to deal directly. The acupuncturist’s approach was one of abject denial, citing that it is “impossible to puncture the lung” and that due to their experience they could not puncture a lung; they elected to argue other potential causes including that the strap of Mr. N.’s guitar or a blister on the lung had caused the pneumothorax.
It was elected not to engage in litigation by correspondence with the acupuncturist and a formal Letter of Notification was submitted to the treatment provider, again reiterating the need to liaise with their insurer which was eventually done however there was no substantive engagement initially.
Once medical records were collated a Consultant Respiratory Surgeon was instructed who prepared a full report on breach of duty, causation, condition, and prognosis, opining that the substantial iatrogenic pneumothorax was caused by the acupuncture not being performed correctly and had caused Mr. N. to suffer from various difficulties which had persisted for several months following aspiration and closure of the pneumothorax with some potential long-term effects and need for investigation should Mr. N. wish to undertake certain activities.
A formal Letter of Claim was submitted citing various breaches of duty on the part of the acupuncturist including a failure to appropriately advise of the known risk of acupuncture-induced pneumothorax, alongside the failure to perform the treatment in a safe manner; the doctrine of res ipsa loquitur was raised further to bolster the Letter of Claim. On submission of the Letter of Claim to both the acupuncturist and their insurance company, a formal offer was made.
On receipt of the Letter of Claim and engagement of the Pre-Action Protocol for the Resolution of Clinical Disputes, the acupuncturist’s insurers fully engaged with the firm and an early exchange of documents was undertaken; settlement discussions were entered into in April 2022 and through an open dialogue, settlement of the claim was reached in the sum of £10,000.00 (substantially more than Mr. N. had been initially advised when speaking with an alternative firm) within four months of submission of the Letter of Claim with costs settling following an informal schedule two weeks later.
Conclusion
This case demonstrates that clinical negligence claims can arise from what people may not consider the usual culprits; it also demonstrates that in certain cases it is not necessary to obtain multiple expert reports – it was clear that Mr. N.’s injuries were manifest at the point of preparing the Letter of Claim and it was therefore logical to obtain a report dealing with all matters rather than incur the time and costs associated with separate reports on breach and condition.
The matter was handled by our Mr. Alexander Ruaux-Keyho who engaged with Client throughout and kept an open dialogue with the acupuncturist’s insurers, working in cooperation and without the need for an adversarial approach, resulting in a prompt, amicable settlement for which Mr. N. expressed his gratitude.
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