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
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
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
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.
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