The claimant in this case had undergone laparoscopic surgery to terminate an ectopic pregnancy at an NHS hospital. She was told that the procedure had been fully successful but continued to feel unwell. On the second day after surgery, she went back to the hospital for tests which confirmed that she was still pregnant. She was informed that she needed a further procedure, but the hospital could not guarantee the operation would be carried out that day or who the surgeon would be.
Anxious about the increasing risk of rupture, the claimant immediately self-referred for private medical care and a second, laparoscopic procedure was carried out that day. She stayed in hospital overnight and was discharged the next day.
Following the second surgery, the claimant needed to start her recovery process again, and had two additional laparoscopic scars due to the need to repeat the procedure. She had also suffered distress and upset at the failure of the first surgery and brought a claim against the NHS hospital for damages.
The hospital trust admitted that the surgeon had failed to remove the ectopic foetus during the surgery and that, as a consequence, the claimant had needed to undergo a second procedure.
They did, however, initially argue that she should not be entitled to recover her private medical costs on the basis that she should have had the second operation on the NHS and by having surgery privately had failed to mitigate her loss. The argument put forward for the claimant was that her decision to opt for private treatment was entirely reasonable given the NHS hospital could not confirm when the second, emergency, procedure was to take place and which surgeon would operate. She was understandably concerned that the same surgeon who performed the negligent operation would operate on her again.
The NHS Litigation Authority did subsequently concede liability for the private medical costs and made an initial offer to settle the case. Our medical negligence solicitors put forward a higher offer of £12,000 on the claimant's behalf, which the NHS Litigation Authority accepted.