Clinical Negligence

FAQs on gynaecology and maternal injury negligence claims

What is a gynaecology or maternal injury negligence claim?

A gynaecology or maternal injury medical negligence claim can be brought when the care provided to a patient regretfully does not meet a proper standard and causes harm that would not have occurred otherwise. This may be due to poor care provided by an NHS obstetrics or gynaecology team or it may be the result of a mistake made by a specialist gynaecologist providing private medical treatment. Harm can also occur where a GP fails to identify the need to refer a woman for gynaecological follow-up or in A&E if a necessary referral to the gynaecology team does not take place.

Sometimes women receive poor care when gynaecological scans or investigations, such as smear tests or vaginal swabs, are misreported. Others experience significant and unnecessary delays in the treatment of severe conditions such as endometriosis, which can have long-term consequences.

The harm or injury caused can take many forms. At Penningtons Manches Cooper, our solicitors have investigated cases relating to perineal/vaginal tearing, bladder injuries, urinary tract infections, stress urinary incontinence, prolapses, abnormal vaginal bleeding, adhesions, severe abdominal pain, painful sexual intercourse, reduced fertility or infertility, unnecessary hysterectomy, post-partum haemorrhage and retained products of conception.

These FAQs provide guidance on the types of situations that can lead to a gynaecology or maternal injury negligence claim as well as advice on the process involved.

Who will the defendant be?

This will depend upon your individual treatment circumstances.

NHS hospitals come under the umbrella of an NHS trust. The relevant trust will be the defendant to any claim arising from NHS care provided by one of its hospitals rather than any individual medical practitioner. Claims relating to NHS care are handled by NHS Resolution.

If a GP has failed to provide the expected level of care, perhaps by not referring a patient to hospital for investigation, then depending on when the breach of duty occurred, the claim will either be dealt with by NHS Resolution or by the GP’s professional indemnity provider.

Investigations into care in the private sector are handled by the medical specialist’s professional indemnity provider.

How will my medical treatment be assessed?

The starting point is that all medical professionals owe their patients a ‘duty of care’. If a poor level of medical care is given, falling below what would be expected by a reasonable and responsible body of medical opinion in the circumstances, the duty of care is likely to have been ‘breached’, constituting negligence. If that negligence has caused injury (physical and/or psychological), then a claim for compensation will succeed.

What sort of medical experts will be involved in my gynaecology or maternal injury negligence claim?

The standard of treatment you have received will be critiqued by an independent expert in the same field of medicine. If a gynaecologist has made a significant error with your care, this will be examined by an independent gynaecology expert. Likewise, if a radiologist has not reported a gynaecology ultrasound properly, so that incorrect treatment is given in response to the results, the case will be considered by an independent radiologist. Where a woman has been fitted with a transvaginal tape, without having been consented adequately, and it has gone on to cause her difficulties, the standard of care will be judged by an independent urogynaecologist.

The question of what type of injury poor medical care has caused may be looked at by separate experts. For example, if a gynaecologist has failed to refer a woman with suspicious symptoms to an oncology team, an independent oncology expert would then report on the harm caused by that failure, which could be a delayed diagnosis of a gynaecological cancer and a poorer prognosis than would otherwise have been the case. Where urogynaecology care has fallen short and a woman has suffered a bladder/urinary injury, the extent of that injury and her prognosis will be considered by a urologist. If the poor gynaecological care has led to a difficulty in the woman conceiving, or carrying a pregnancy for any reason, then a fertility expert will be asked to provide advice.

Will I need to be examined by a gynaecology expert and what may that involve?

When there is a physical injury as a result of substandard gynaecology care, it is likely that an examination will be required so that an independent expert can advise on ‘condition and prognosis’, This involves a medico-legal report outlining the additional injury which would have been avoided but for the negligent care. It describes the woman’s current condition and her likely prognosis and assists us with establishing the full impact of the negligence and therefore the extent of the claim so our lawyers can attribute a financial value to it.

During the examination the expert may wish to undertake gynaecological / urogynaecological tests. We will establish this before your appointment so that you know what to expect and are happy with that.

The expert will be someone suitably qualified in the right field of medicine and who is entirely independent of the clinicians/hospitals involved in your care. This can mean that the expert may not be local to you, but we will always check that you are able to travel to the place where the appointment needs to take place.

Sometimes the defendant will instruct its own experts and ask you to attend appointments with them. If this happens, we will discuss the request with you to ensure you understand what is required and are comfortable with that.

I would prefer to be examined by a female expert. Can I request that?

Yes, of course. We appreciate that your health and medical history are very personal to you and that you may prefer to be examined by a female specialist. If this is the case, please tell your solicitor as early into the process as you can.

Will the defendant see my medical records?

We will obtain a copy set of your medical records and the independent experts will review these carefully to reach their conclusions on the standard of medical care you have received and the injury it has caused you. If we believe we can establish a gynaecology or maternal injury negligence claim, we will put that claim to the defendant and invite the defendant to respond. In order to do so, the defendant will carry out its own investigations and will need to see your medical records. This is a standard step in any clinical negligence investigation.

We will keep an electronic copy of your medical records on a secure portal and only people/organisations involved with your claim will have access to them. However, if there is something sensitive in your medical records, which you are worried about anyone else seeing, please do let our solicitors know as soon as possible and we will discuss with you how to handle the situation. See here for our privacy policy.

What can I claim for if I establish that my gynaecology medical care was substandard?

You will be able to claim damages (compensation) to reflect the extent and impact of your physical and/or psychological injury. These damages are called ‘general damages for your pain, suffering and loss of amenity’. It is recognised that the injury caused as a result of gynaecological negligence may not only be limited to physical pain but can also impact upon a woman’s ability to have and enjoy pain-free sexual intercourse.

What may have happened to you will be unique to you and no two claims are the same. This list is not exhaustive, but our solicitors have evidenced and claimed general damages for injuries to women in the following areas:

  • incontinence;
  • vaginal tears and fistulas requiring surgical repair;
  • poor management of ectopic pregnancy;
  • uterine perforation caused during contraceptive coil insertion;
  • reduced fertility or infertility;
  • mismanagement of pelvic infection;
  • post-partum haemorrhage and abnormal bleeding (which can arise from incomplete delivery of the placenta);
  • failed sterilisation;
  • negligently performed episiotomy at childbirth;
  • missed retained products of conception;
  • unnecessary uterine embolisation;
  • laparoscopic surgery causing injury;
  • urinary tract infections;
  • need for hysterectomy or where an unnecessary hysterectomy has been performed;
  • complications from vaginal meshes and transvaginal tapes;
  • gynaecological cancers – cervical, ovarian, vaginal, vulval and womb cancers (often a failure to diagnose/delay in diagnosis leading to a poorer prognosis);
  • anxiety and fear (psychological injury).

You can also claim compensation for financial expenditure incurred as a result of the negligence. This again will be specific to you, but may include loss of earnings, the cost of private care, any aids or equipment you may have purchased, the cost of medical prescriptions, the cost of items such as sanitary products and travel expenses for attending additional medical appointments. Finally you can also claim for likely future expenses, which may be as a result of needing further surgery, treatment or therapy (IVF for example or private midwifery treatment for future pregnancies/births), and can also cover surrogacy costs, expected time off work and lost income/pension due to needing to work reduced hours or retire early.

If I begin a gynaecology or maternal injury negligence claim, will that become public knowledge?

We must notify the defendant at an early stage that we are investigating your medical care with a view to proceeding with a claim. Our solicitors will need to write to all the hospitals where you have been treated, and your GP, to request copies of your medical records, so they will have knowledge that you are investigating a potential claim.

If it is necessary to commence court proceedings and litigate your claim, then court documents are a matter of public record and court hearings are also public affairs. It is possible to ask the court to anonymise the proceedings so your name does not appear in them, and the court will do so when it considers this reasonable and necessary.

Am I right to contemplate a gynaecology or maternal injury negligence claim?

We encourage clients to consider our involvement firstly as an investigation, rather than a claim. Our solicitors will investigate for you what has happened and why; for many women this provides much-needed answers. If we establish that the care was substandard, and has caused additional injury, then we can go on to put forward a letter of claim to the defendant, in accordance with the pre-protocol for the resolution of clinical negligence disputes, and try to settle the claim amicably without needing to start court proceedings. Our clients often say to us that an independent investigation of their care has been hugely important to them. It may have resulted in answers, in feeling listened to, in helping to break ‘the taboo’, in an apology and importantly in changes to a system, protocol or procedure that will make a difference and prevent the same mistakes from being made again.

I had gynaecological surgery years ago but I have only recently started to experience complications. Can I still make a negligence claim?

Yes, you can. Although the usual three-year limitation rule applies to any form of medical negligence claim, this three-year period can, in some cases, start to run once you become aware that the treatment you received may have been negligent and has caused you injury. Please do still contact us and one of our lawyers can consider your particular situation.

I signed a consent form but I now know that I was not properly advised of all the risks. Can I still bring a compensation claim?

Often women undergo gynaecological surgery for issues that impact upon their daily life, but are perhaps not life-threatening and requiring emergency treatment. These could be issues such as a vaginal prolapse, stress urinary incontinence, cysts or fibroids.

In those circumstances, in order to give your informed consent for a medical procedure, you must have been informed of all the ‘material risks’ of the procedure, including any risks the clinician thinks you may attach significance to, even if the chances of that risk materialising are low. You must also be made aware of any reasonable alternative treatments that could have been available to you, for example non-surgical intervention or conservative treatment.

Therefore, even if you signed a consent form, you may still be able to bring a gynaecology or maternal injury negligence claim, providing you were not informed about all the material risks or about conservative management alternatives and alternative surgical options, and had you been, you believe you would not have chosen to go ahead with the treatment.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

Penningtons Manches Cooper LLP