We settled a claim against the Royal Berkshire NHS Foundation Trust for its failure to counsel a patient about the risks of sustaining further perineal trauma after developing a third degree anal sphincter tear during her first delivery which required surgical repair, following which she had a number of complications.
When our client fell pregnant again, her care was booked at the Royal Berkshire Hospital. In light of her history, she was appropriately booked for consultant-led care and she was seen by a consultant on two occasions, during which her previous obstetric history was highlighted.
It was our client’s evidence that she was concerned about proceeding to another vaginal delivery and that she specifically asked her consultant about the risks of further perineal trauma. She was advised that special measures would be taken to avoid further trauma but no other options for delivery - including the option of delivery by elective Caesarean section - were given.
Our client subsequently went into spontaneous labour during which no special measures were put in place and she developed a further third degree tear that required further surgical revision.
We were instructed to investigate a claim against the trust and supportive evidence was obtained from a consultant obstetrician. On the basis of the evidence obtained, a formal letter of claim was submitted. It was our client’s case that, in light of her history, there was an obligation to counsel her about the increased risk of further perineal trauma and also to discuss the option of elective Caesarean section. Had she been so advised, our client would have requested an elective Caesarean section.
Our client’s evidence was more persuasive following the Supreme Court decision of Montgomery v Lanarkshire Health Board which clarified the law of consent to make it clear that it is now a doctor’s duty to take care to ensure that a patient is aware of any material risks involved in any treatment and to discuss all of the applicable options and relative risks and benefits. This case was about the failure to discuss the option of an Caesarean section given the high risk of our client sustaining perineal damage with a normal delivery.
The NHSLA was instructed to investigate matters on behalf of the trust and a letter of response was served in which a full denial of liability was made. We made it clear that we considered that the claimant would succeed in her case and that we would issue court proceedings if the trust did not settle the claim. Notwithstanding the trust’s position on liability, Part 36 offers were exchanged between the parties and settlement was reached without the need to issue court proceedings.
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