AB v Central London Community Healthcare NHS Trust

Background

Our client, AB, had been using the Nexplanon contraceptive device for 6 years. She had a Nexplanon device inserted into her left upper arm by her GP in August 2012 which she then had removed and had a new one inserted into the same arm in August 2015. She was scheduled to have this procedure done again in 2018 and as she had moved house during this period, her new GP advised her to contact Herts & Essex Family Planning Clinic (which was managed by the Defendant, Central London Community Healthcare NHS Trust).

Procedure and Subsequent Events

AB subsequently booked and attended the appointment at Herts & Essex Hospital, in the family planning clinic, on the 16 August 2018, where she had her existing Nexplanon device removed from her left arm and had a new one inserted into the same arm. The doctor who inserted the device told our client that it had been inserted quite deep. She was given a card which stated that the device had been inserted and the date on which it needed to be removed.

When she removed the dressing at a later date, there were only a few spots of dried blood, and, unlike her previous two insertions, she could not feel the implant. However, she was reassured as her doctor had told her that it had been inserted deeper than the previous two implants, which is why she could not feel it. After the insertion, she did not have a menstrual cycle. However this had happened after both of her previous insertions, so this was not a concern. She began to gain weight, but she put this down to her lifestyle.

Discovery of Pregnancy

In February 2019, our client decided to take a pregnancy test as she felt bloated and tired. She believed it to be unlikely that she was pregnant due to the Nexplanon, however she wanted to be certain. When the test came back positive, she telephoned the family planning clinic who were unable to help her, and they directed her to the British Pregnancy Advisory Service (BPAS). She had an appointment with BPAS on 19 February 2019 and was told that she was 22 weeks and 3 days pregnant. She had no choice and was forced to continue with the pregnancy. Her son was born healthy in June 2019.

Medical Investigations

Following the birth of her son, our client’s GP referred her to Princess Alexandra Hospital for an x-ray. She received the results in July 2019 which showed that there was no implant in her arm. It is unlikely that the implant migrated as she had a BMI of 24.3 (not thin or obese) which means that a correctly placed implant would not migrate or push itself out without being detected by the patient. In February 2020, a chest x-ray did not show the Nexplanon to have migrated. This indicates that the implant was either never inserted (despite the process of insertion being carried out) or was inserted incorrectly.

Claim for Wrongful Birth

Our client instructed Stephanie Prior (Partner) and Nicholas Leahy (Associate), to pursue a claim against Central London Community NHS Trust for wrongful birth.

Our client suffered unnecessary pain and suffering as a result of falling pregnant and then delivering her son. On the balance of probabilities, she would not have fallen pregnant with the correct insertion of a Nexplanon device, as Nexplanon is considered to be 99% effective at preventing pregnancy.

Our client alleged that there was a failure to use the correct technique to insert the contraceptive device, and/or that there was a failure to insert the device at all, and a failure to check (by palpation) that the device was in our client’s arm before she left the clinic.

Expert Evidence and Defendant’s Response

Expert evidence was sought in this claim from a General Practitioner with experience in the competent insertion of Nexplanon devices. The expert’s report was supportive of our client’s case.

A Letter of Claim was sent to the Central London Community Healthcare NHS Trust in June 2020. Liability was denied in a Letter of Response which was served on 6 November 2020. The Defendant argued that the documentation did not support the allegation that the technique used was substandard, and further that the documentation clearly evidenced the device was inserted into her left arm. The Defendant’s position was that the absence of the device on x-ray of the humorous was due to the device having migrated from its insertion position, which is not evidence of negligence.

Etonogestrel Test and Further Actions

In light of the Defendant’s response, our client was advised by our expert to obtain an Etonogestrel test. The sample was then analysed by a laboratory in Columbia University Medical Centre in New York, and showed that etonogestrel was not detected in our client’s blood. Etonogestrel is a progestin hormone which prevents ovulation and pregnancy, and is the active ingredient of the Nexplanon device.

Following receipt of the lab report, and further discussion with our expert, a Letter of Challenge was sent to the Defendant in July 2022, inviting them to reconsider their stance on liability. The Defendant did not respond to this letter for many months, despite assurances they would. Multiple extensions to the limitation period were agreed. As no progress had been made, the Defendant was put on notice that our client intended to issue court proceedings. The Defendant argued this was premature and that as ADR had not been explored, that it was unreasonable to do so. As our client had no response to her Letter of Challenge, and as the Defendant had made no effort/proposals for ADR, she undertook steps to prepare for the issue of court proceedings, including obtaining Condition and Prognosis evidence from a Consultant Psychiatrist.

£35,000 Settlement Agreed

The Defendant eventually responded in October 2023, merely to reiterate that the stance taken in their Letter of Response was maintained.

Thereafter, our client instructed Rebecca Livesey, Counsel of No 5 Chambers, and following a conference with counsel and our expert, court proceedings were issued and served. Following service of the Particulars of Claim, the Defendant’s representatives indicated that they had instructions to negotiate settlement of the case prior to the service of a Defence. Negotiations then took place, and a settlement in the sum of £35,000 was eventually agreed. This reflects the pain and suffering experienced by our client as a result of the negligence, and allows her to undergo therapy which was recommended by the expert Consultant Psychiatrist in her report.

Conclusion

Following settlement of this case, Nick Leahy, Associate in our Clinical Negligence team, said:

“I am pleased that we have managed to secure a positive outcome for our client in this long-running case. Despite arguing that it was premature to issue court proceedings, the Defendant only agreed to negotiate settlement of this case once we had done so, and sadly made no attempt to engage in ADR prior to that happening. This caused additional stress to our client, and increased the costs of the litigation. This case serves to emphasise the importance of obtaining legal advice from clinical negligence specialists in complex cases”

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