Article: T v Mayday Healthcare NHS Trust

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CASE NOTE
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Liability, failed sterilisation
Quantum, failed sterilisation, failure to occlude fallopian tube, continuing pregnancy resulting in birth of live infant, exacerbation of lupus disease
Settlement by Consent Order on 13th July 2009
Denise McKeown of McMillan Williams Solicitors, New Addington, Surrey for the Claimant
Capsticks, Putney for the Defendant
Case Report submitted by Denise McKeown, McMillan Williams

The Claimant was admitted to the Defendant’s Hospital on 23rd September 2005 in order to undergo a laparoscopic sterilisation.  The operation detailed that one Filshie clip was applied to each tube.  The Claimant suffered from lupus disease.  She had been advised that this could complicate any future pregnancy.  The Claimant was under the care of the Rheumatologist at the Defendant’s Hospital.  She was prescribed Hydroxychlorquine and Naproxen.  Naproxen is an anti-inflammatory and it not advised during pregnancy as it can cause foetal abnormalities.  There were therefore concerns about the unborn child. 

In May 2006 the Claimant’s lupus symptoms were said to have worsened.  In August 2006 a pregnancy test proved positive and this was confirmed by her GP.  She subsequently gave birth in March 2007.  the child was examined by a Paediatrician, fortunately he had not suffered as a result of drugs ingested by his mother during her pregnancy. 

In April 2007 she was seen by a Gynaecologist at Guy’s and St Thomas’s Hospital.  She requested a further sterilisation having been told by the Defendant Hospital that the sterilisation had failed due to the failure rate.

It was arranged for her to undergo a mini-laparotomy.  During the procedure it was noted that the left Filshie clip was not on the tube and the right clip transected the right tube therefore an effective sterilisation had not been performed.  The Claimant sought legal advice and instructed Solicitors.

The Claimant’s Solicitors obtained copies of medical records.  Among the records from Guy’s and St Thomas’s Hospital where photographs showing that the left Filshie clip was on the tube and was attached to a piece of tissue. 

In an attempt to bring this matter to a speedy conclusion a letter of claim was sent to the Defendant on the 7th November 2007 accompanied by photographs obtained from Guy’s and St Thomas’s Hospital.

The matter was passed to the NHSLA.  The NHSLA stated that they had contacted the Consultant who was sure that the Filshie clip had been applied correctly and was confident that the application was appropriate.  They stated that there was a failure rate of 1 in 200 for sterilisation procedures and that this had been explained to the Claimant prior to performance of the operation.  The NHSLA stated that there was several causes for sterilisation failure.  They believed that there had been device failure in the Claimant’s case.  With regard to causation they accepted that the procedure had failed and that the Claimant had subsequently became pregnant. 

The Claimant’s Solicitors had attempted to settle the claim without the need for expert evidence.  However in view of the Defendant’s response it was necessary to obtain a medical report from a Consultant Obstetrician and Gynaecologist.  In the expert’s opinion the standard of care afforded to the Claimant fell below an acceptable standard.  He stated that in his view, no competent Gynaecologist would have failed to be able to accurately identify the left fallopian tube and place the Filshie clip in an appropriate position across the tube.  It was his opinion that the first sterilisation carried out by the Defendant had not been carried out in accordance with the practice that would be expected of a competent Gynaecologist.

As quantum concerned exacerbation of the Claimant’s lupus disease and psychiatric sequelae it was also necessary to obtain causation and condition and prognosis evidence from a Rheumatologist and a Clinical Psychologist as well as a condition and prognosis report from a Paediatrician. 

Proceedings were issued on the 18th September 2008.

The Claimant made an offer under Part 36 of the CPR for £35,000.  The Defendant made a counter offer for £20,000 which was rejected by the Claimant.  The Defendant made a revised counter offer of £30,000 and this was accepted by the Claimant thus the matter concluded.

Solicitors Note

This is an example of the NHSLA not considering clear evidence at the outset of the claim and making an early admission of breach of duty and causation where it would be feasible and appropriate to do so.  The Defendant was offered an early opportunity to admit liability which would have saved costs.  As a result of the Defendant’s continued denial the matter was unnecessarily protracted and resulted in unnecessarily increasing the costs incurred by the Claimant’s Solicitors.  It offers an insight into the reasons as to why Claimant’s costs against the NHSLA have been the subject of recent press releases.  The matter could have been resolved more quickly and cheaply had the NHSLA got to grips with the claim earlier. 

I consent to this Case Report being submitted to APIL, PI Focus and Lawtel and for details to be published on the website of McMillan Williams Solicitors.

Signed …………………………….
Colleen Trotman

Dated ……………………………….