Clyde & Co's healthcare team have successfully defended a claim in which it was alleged that an experienced consultant in reproductive healthcare failed to insert a contraceptive implant (Implanon). Clyde & Co acted for the Defendant Trust on the instructions of the NHS Litigation Authority (NHSLA).
The Claimant subsequently fell pregnant and gave birth to a healthy child. A claim was brought for wrongful birth and consequent psychiatric injury. This judgement continues a recent run of trial successes for the healthcare team and the NHSLA.
The claim was robustly defended throughout and the NHSLA provided instructions to proceed to trial in September 2016. Causation was uncontroversial. It was agreed that the implant was subsequently found to be absent and the pregnancy resulted from this. Quantum was agreed, subject to liability, before trial commenced.
The narrow issue considered at trial was whether or not the implant was in place when the Claimant walked out of the room after the insertion. It was agreed that if it had not been inserted and the consultant failed to realise this, this would amount to negligence. The consultant who inserted the implant had no memory of the particular procedure, but had made very clear notes and gave extremely good evidence about her normal practice and why she would have inserted it correctly. The expert evidence was that non insertion was probably the most common cause of an Implanon implant being absent, but extrusion at a later date was another possible cause. The Claimant's case was essentially that, as non-insertion was most common, the Judge should find for the Claimant.
Oral Judgment was handed down on 6 October 2016 when Her Honour Judge Baucher accepted all the evidence of the Trust's consultant factual witness and the contemporaneous notes, and found that even though the consultant could not remember the procedure she would have followed her standard practice and the device was properly inserted. On balance it extruded at a later date.
This case shows that "Implanon failure" cases can be defended if the witness evidence is strong. Even if expert evidence states that negligence is the most common cause of an injury, this can be successfully rebutted even where a witness cannot remember the particular procedure.