Stephanie Prior, Partner
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Background
The Claimant, (G), was 29 years old at the time of events in question. G already had two small children, aged 3 years and 6 months respectively, when she attended her local family planning clinic seeking contraceptive advice.
On 8 December 2005, G returned to her local family planning clinic where she had a contraceptive implant inserted into the upper part of her left arm.
The device, called an Implanon implant is a small flexible rod that is placed just under the skin of the upper arm. It gradually releases the hormone progestogen into the bloodstream, and provides contraceptive protection for up to three years.
The implant is introduced by way of a special needle called an obturator, which is used to push the implant under the skin. Local anaesthetic is applied prior to insertion and the area is palpated after insertion to confirm the location of the implant.
Following the procedure, G recalls being asked to palpate the area but was unable to feel the implant herself. G presumed at the time that this was due to the swelling. A dressing was then applied to the wound and G was sent home. No follow up appointment was arranged and no checks were made at the time to ensure that the implant was not still in the obturator.
When G removed the dressing a week later, the wound was healing well and there was no evidence that the implant had extruded. G had two normal menstrual periods following the procedure on 8 December 2005.
On 20 March 2006, however, when her third period was late, she attended her GP surgery where a pregnancy test was carried out. The test result was positive and G was informed that she was pregnant. The pregnancy was confirmed on 21 March 2006 during an appointment at Lewisham Hospital where ultrasound scans revealed that G was around 6 weeks pregnant.
On 23 March 2006, a further ultrasound scan was performed in an attempt to identify whether the Implanon implant was still in G’s arm. Clinicians were unable to locate the implant using the scanner and G was informed that the implant could have migrated within her body. The manufacturers of the implant, a company called Organon, were then informed of G’s pregnancy.
Organon arranged for blood tests to be performed in order to ascertain whether the implant was still in G’s body. The results confirmed that the implant was not in G’s body, suggesting that either the implant had never been inserted, or that the implant had been inserted correctly, but had been expelled shortly afterwards.
On 26 March 2006, G had a miscarriage. She suffered a significant psychological reaction to the unplanned pregnancy and subsequent miscarriage.
Procedure
G instructed Anthony Gold Solicitors to investigate her claim against Lewisham Primary Care Trust.
Expert evidence was obtained from Dr Sam Rowlands, a specialist in contraception and reproductive health. Dr Rowlands was of the opinion that the most likely cause of the failure of the Implanon device in G’s case was non-insertion. Dr Rowlands concluded that the most likely reason for non-insertion was substandard insertion technique on the part of the Defendant. G had not been aware of the implant in her arm at any time and in addition to this had been unable palpate the implant immediately after the procedure.
A Letter of Claim was sent to Lewisham Primary Care Trust in accordance with the Pre-action Protocol for the Resolution of Clinical Disputes. In their Letter of Response, the Defendants denied liability and accordingly proceedings were issued on 24 February 2009. Particulars of Claim were served on 18 June 2009 and a Defence was served on 12 October 2009. The Defence maintained the Defendants initial denial of liability and made allegations of contributory negligence, claiming that G either failed to notice the fact that the implant had been expelled or that G removed the implant herself.
Disclosure of documents took place on 4 December 2009 and lay and expert evidence was exchanged on 22 January 2009. G relied upon the evidence of Dr Brian Toone, Consultant Neuropsychiatrist as well as that of Dr Sam Rowlands.
Quantum
G miscarried one week after discovering her pregnancy. As well as the distressing and painful experience of the unplanned pregnancy and consequential miscarriage, G experienced a great deal of distress and anxiety.
G had a history of post-natal depression and anxiety and had undergone treatment and counselling for this during the two years preceding the miscarriage. Following the miscarriage, G experienced an exacerbation of her depression and was diagnosed with bi-polar disorder. She continued to receive counselling and was on medication. G was also unable to return to work and relied heavily on family members for assistance with childcare.
One of the key issues in establishing quantum in this case was G’s pre-existing psychological condition. The Defendant claimed that G would have continued to suffer with depression in any case and as a result, would have required the continued assistance of her family and was unlikely to have returned to work. G claimed, however, that events had seriously exacerbated her depression and that at the time of events in question, she had made a great deal of progress, but had been dramatically set back by what had happened.
On 17 November 2009 the Defendants put forward an offer of £10,000 in full and final settlement of G’s claim. G rejected this offer in a letter dated 4 December 2009 and made a Part 36 offer in the sum of £30,000. Negotiations followed and in a letter dated 12 February 2010, the Defendant stated that they did not accept G’s claim for past loss of earnings nor the bulk of G’s claim for care and domestic assistance. G accepted the Defendant’s global offer of £15,000 in full and final settlement of her claim shortly after.
Solicitor for the Claimant: Stephanie Prior, Anthony Gold Solicitors
Counsel for the Claimant: Caroline Hallissey Outer Temple Chambers
Solicitor for the Defendants: Clifford McCormack, Barlow Lyde & Gilbert
For further information email Stephanie Prior or call 020 7940 4000.
