Clinical negligence claim settled for inadequate consent and technical failures in hysterectomy and oophorectomy

Posted: 09/11/2015

The Penningtons Manches clinical negligence team has recently agreed the settlement of a claim against the gynaecology team of a South West hospital for alleged consecutive failings in our client’s management over a three year period.

For many years, our client was under the care of the gynaecology team at her local hospital for problems with lower abdominal pain and menorrhagia (heavy menstrual bleeding). In late 2007, our client was seen by a junior gynaecologist who informed her that she would be an ideal candidate for a total abdominal hysterectomy. As our client was only in her early 40s at the time, she thought this was a very drastic option but she was assured by the doctor that a hysterectomy would completely resolve her problems, particularly with the heavy menstrual bleeding. On this understanding, our client agreed to undergo a total abdominal hysterectomy with conservation of both ovaries and she was listed for the surgery in early 2008.

However, in the interim, our client learned that an alternative to a hysterectomy was a sub-total hysterectomy which retained the cervix. She had not been given this option by the hospital and had no information about the relative risks and benefits but preferred to have a less extensive procedure. Prior to the surgery, our client informed her surgeon that she wanted to retain her cervix and the surgeon agreed to this with no questions. There is a risk of continued bleeding if the cervix is retained but this was never explained to her.

Unfortunately, following her sub-total hysterectomy, our client  continued to suffer with menorrhagia and pelvic pain. She continued to attend the gynaecology clinic but was never given an explanation why she continued to suffer with her symptoms, despite undergoing the hysterectomy.

Sadly, our client developed further problems with very severe left sided abdominal pain in late 2009 which was diagnosed as cysts on the left ovary. In early January 2011, our client underwent further surgery to remove both ovaries (known as a bilateral salpingo-oophrectomy). Due to the potential complexity of the surgery, she was assured that her consultant would perform the operation himself. This assurance provided our client with some comfort, particularly as her consultant knew of her complex past history.

However, our client was informed on the day that her surgery would be carried out by a locum surgeon to whom she was introduced just a few minutes before being taken into theatre. Understandably, our client was apprehensive about proceeding with a potentially difficult operation with a surgeon with whom she had not consulted previously and who may not appreciate the complexity of the operation.

She felt that she had no other option but to proceed with the surgery and the locum doctor subsequently carried out the bilateral salpingo-oophrectomy. Despite being informed post-operatively that the surgeon had managed to remove both ovaries and fallopian tubes successfully and without complication, our client experienced a very torrid recovery. Several months after her surgery, she had an MRI scan which revealed that the surgeon had failed to remove both ovaries and that the left ovary was still in situ and there was also a remnant of the right ovary.

Our client subsequently learnt that this issue had been highlighted by the hospital’s laboratory some months previously but she was not informed and no action was ever taken to resolve these issues. Having lost faith in the doctors at the hospital, our client decided to transfer her care to another hospital where she had to undergo repeat surgery to remove both ovaries, which was performed successfully. 

As a result of the failings during the first operation to remove both ovaries, our client instructed Penningtons Manches LLP to pursue a claim against the gynaecology team. During the course of the claim, medical evidence was obtained from an expert gynaecologist who was very critical of the standard of care received by our client for both her hysterectomy and the oophorectomy. 

We obtained independent expert evidence from a consultant obstetrician/ gynaecologist who was critical that there was a failure to appropriately explain the options of a total and sub-total hysterectomy together with the pros and cons of each of the procedures during the initial consultation and, subsequently, when our client requested that her cervix be retained. Our expert was also very critical of the failure to inform our client of the risk of continued bleeding if she retained her cervix and of other associated problems with a retained cervix, including the need for regular cervical smears particularly given her family history of cervical cancer. Our expert was of the opinion that such a discussion must take place in order to obtain informed consent from any patient.

Our expert also criticised the preparation and performance of the bilateral salpingo-oophorectomy. Pre-operative investigations should have been carried out to assess the complexity of any operation and there was a clear failure to remove both ovaries during the course of the procedure. Our expert said that our client’s case should never have been delegated to a locum doctor and the number of errors were due to the lack of any consultant led-care, as our client was predominantly seen by relatively junior doctors throughout.

A letter of claim was subsequently submitted to the defendant’s representatives setting out the allegations of negligence in our client's care. Liability was contested in full and the defendants were difficult about producing the requested information. Given their refusal to admit any errors, we issued and served court proceedings, having made offers to settle which were rejected.  The defendants finally entered into negotiations which resulted in a settlement for our client.

The case was dealt with by Philippa Luscombe and Naomi Holland in the clinical negligence team, who commented: “This is an unfortunate case which clearly highlights the importance of ensuring that any patient is fully aware of their treatment options and the associated risks and benefits. If sufficient time had been taken to explain the differences between the two operations to our client, she would have proceeded with a total hysterectomy as there were no benefits for her in proceeding with a sub-total hysterectomy. Our client’s care overall showed a lack of planning and integration and the trust was not up front with our client about what had happened. The robust denial of the entire case only to then settle once all the costs of court proceedings had been incurred just compounds her disappointment in the way she has been treated.”

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