The clinical negligence team at Penningtons Manches has settled a claim against an NHS trust for the failure to counsel a patient about the risks of sustaining further perineal trauma after developing a third degree anal sphincter tear during the delivery of her first child which required surgical repair, following which she had a number of complications.

When the client fell pregnant again, her care was booked at the Royal Berkshire Hospital. In light of her history, her care 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.

The client was concerned about having another vaginal delivery and 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 a delivery by elective Caesarean section - were given.

She 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.

Penningtons Manches was 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. The client’s case was that, given her history, the trust should have counseled her about the increased risk of further perineal trauma and also discussed the option of elective Caesarean section. Had she been so advised, she would have requested an elective Caesarean section.

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, the client’s evidence was particularly persuasive. This case was about the failure to discuss the option of a 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. The team made it clear that it considered that the claimant would succeed in her case and that court proceedings would be issued 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.

Amy Milner, a member of the Penningtons Manches clinical negligence team who dealt with the case, comments: “This was an interesting case on the issues of whether a patient was appropriately counselled about the risks of developing further injury and the range of options available and a hot topic for many doctors and lawyers in the light of the recent Supreme Court decision last year. Although the NHSLA denied liability and disputed our client’s case, it recognised that there were risks in terms of liability and whose evidence a court would prefer.”