Medical negligence claim 3 years after incident?

[Dayman2024]

Hoping for some advice on whether my claim would even be accepted, as the incident itself happened over 3 years ago.

Without going into too much detail, I gave birth to my first daughter in June 2021. My labour was incredibly quick and as she was crowning they said they needed to do an episiotomy and ventouse delivery. I said no. More than once. My husband also told them no. They did it anyway. 2 weeks into the recovery I noticed it was still quite painful, so I got it checked out and I was told that the wound had opened but that it didn’t need to be re-sutured. Since then, I’ve experienced pain during sex and I’ve only had sex with my husband a handful of times, so my relationship has taken a toll.

I became pregnant with my second daughter in August 2023 and because of my previous birth trauma, I opted for an elective c-section. I had to have a birth choices appointment in March 2024 to discuss my reasoning, and after I explained everything that had happened to me to the consultant, she advised me that I was essentially assaulted by the doctor who performed the episiotomy as I had not given consent, and that I should write a complaint to the hospital and to the GMC. She also said it’s very likely I now also have PTSD as a result of the birth trauma.

Then just last week, I had a gynaecology appointment as my GP had referred me in August 2023 due to the ongoing pain during sex. She examined me, and confirmed that I have a disfigurement due to the episiotomy and that I will need reconstructive surgery. I asked her, if the wound had been re-sutured when it opened, would the disfigurement have happened, and she said most likely not.

So, after all this, I’m now looking at instructing a lawyer to make a medical negligence claim on my behalf. But I’m not sure about the 3 year limitation period. I’ve done some research and I think, it would apply from the birth choices appointment I had in March 2024? Or the gynae appointment as I was officially diagnosed? I would appreciate any advice and I’m happy to answer questions too. Thank you

Time-wise, you're fine - you've got three years from the date of the physical damage or from when you realised it was a problem.

HOWEVER, if that doctor can get one other doctor to say they would have done as he/she did, your claim is going to fail.

Only on MN is there someone distressed and citing PTSD and there's always one posted that has to be rude and mean. Looking at you @rochenut. Just watch your tone with the OP. Not needed.

@Dayman2024 call around to private physios and plastic surgery clinics and have an idea of what the costs and timeline might be for some restorative work.
it might help you decide if the legal route is worth the effort. Same with some 1-1 work for the PTSD.

op
I have mistakenly thought you were thinking of making a claim for compensation .so apologies for that.
My complaint wasn't dealt with to my satisfaction by the NHS,I ended up going to the ombudsman with my complaint .(they ruled against me)
But It was something I had to do as my mind just kept churning over and over what had happened. I couldn't rest until I had gone as far as I could.
It helped me,I now no longer think about what happened. It's like I got it all off my chest. It doesn't consume me in the way that it did up until then.

You can make a complaint, but if you want compensation the 2 key questions are:

(1) Can you be absolutely sure that an error was made ie would other healthcare professionals have acted differently?

(2) Did the error definitely cause the problem or might it have arisen anyway?

If there is doubt on either of these then your claim won't succeed.

Upthread posters with medical experience have already said (1) the episiotomy was probably lifesaving and (2) such wounds are rarely resutured.

Isn’t she, normally if you instruct a lawyer for medical negligence claim it’s to get money.

@LettyToretto thank you for clearing up the timing side of it. If that’s the case then you’re probably right. I think the best thing for me now is to get therapy and hope that the reconstructive surgery helps.

@gloriawasright that’s exactly it! Even though it happened 3 years ago, it’s something that’s always been on my mind. I’ve never been able to openly talk about it and get it off my chest. I think once that happens, I’ll be happier.

@LycheeFizz thank you for clearing that up.

I had a birth trauma and successfully sued the NHS

However, from what you've said I think you'd have an uphill struggle

My case took 4 years but there were clear medical mistakes
I think you'd have trouble proving the episiotomy wasn't necessary especially 3 years on

You’ve had some really good advice on the legal side already OP so I won’t add to that. I will add though that I had a very similar birth 4 months ago, baby in distress, episiotomy, forceps (and an extra tear at the top just for a bit of added fun clearly!), birth was a traumatic experience for me and honestly all became a real blur in my mind, I was in no fit state to understand what anybody was saying to me when I was in that moment so I couldn’t possibly have given safe sane and informed consent, I could barely remember my own name in the thick of it, but my baby is of course here and perfectly healthy. I booked a birth debrief 2 months postpartum which massively helped me understand the situation, what happened, when and why, I’d really recommend doing that if you haven’t already. I’ve also had a few counselling sessions to get my head around it, which is important because we want another baby so I don’t want that fear hanging over my head. I would definitely recommend both a debrief and therapy, as well as looking into reconstruction x

Kindly OP, I think you need to find a way to move on from this. Remind yourself that you have a healthy child because of this awful experience and you have a plan to repair the damage. I think therapy would be a good idea to accept what happened to you. The episiotomy was necessary. When you were examined after they obviously thought you would heal without the need for further intervention. You could call that a mistake or you could accept that medical care is basically just very educated guessing and that person just happened to be wrong on this occasion. There may have been nothing there to suggest to them that you wouldn’t heal properly and they made their evaluation based on what they could see. No one purposely left you in this condition, it was just an unfortunate chain of events.

It has to be financially beneficial to them to put the work in. So not really working only on your behalf.

@gloriawasright do you work for free out of interest?

Duty of candour would be part of the responsibility, but generally moral duty would mean we would. I would have escalated it immediately had you told me it in a professional capacity

As you've said, you only have three years within which to bring a claim or, if you were not aware that something went wrong at the time, three years from the date on which you knew it had gone wrong (date of knowledge). If it has been more than 3 years since your date of knowledge then unfortunately you're very unlikely to find a solicitor who would take your claim. With regard to a complaint, they should usually be made within 12 months but the hospital does have discretion to deal with it outside of that timeframe.

What is it that you're hoping to get from any action? Compensation or an apology or answers about what actually happened?

I will respond to this. Without any sarcasm because it's not needed.
If you engage a lawyer you pay for their services win or lose.
If you engage a firm that advertise a no win no fee system they will only take on the case if it is going to give them a payout.
There is a difference.
If you seek advice from a no win no fee firm and they don't take it on ,it gives the impression that your case is not a good one. This isn't always the case.you may still have a good case, but not one that gives a big enough payout for these types of firms.

Until the baby is outside the body it has no rights. You cannot legally perform a csection against a woman's wishes outside of a court order to do so. You can only csection against mums wishes to save mums life, not babys

It would be a terrible solicitor who took a medical negligence claim on with poor prospects on a private fee paying basis.

The costs would be ruinous for the client not to mention stressful.

If a no win, no fee firm won't take it on (and virtually all offer no win, no fee) listen and don't waste your time.

I am a medical negligence solicitor by the way.

Limitation is 3 years from the date that you should reasonably have been aware of injury, but you can ask the court to disapply the limitation period. Go see a decent firm of clinical negligence lawyers and they will get a medical expert to review your records and give an opinion on whether there was a breach of duty. They usually do this on a CFA so you don't pay for it

Can I add to that. In fact many of these no win no fee charlatans have a clause on their contracts that says if you win the whole fee is due.

so if you win 2k, and their bill is 20. You pay the 20. It’s only if you don’t win there is no fee. They just need you to win a small amount, then they come after you for the total billed hours.

Op I have taken a successful claim against my ob gyn in different circumstances but well after the 3 year limit.

What I would say is please do not seek advice on here. Go and get a consultation with a solicitor that specialises in birth trauma. You are wasting your time asking for opinions on here unless one of the posters happens to practice in this highly specialised area.

What do you mean virtually all offer no win no fee? All what?

That is absolutely rubbish.

It absolutely isn’t. You’re not a medical negigence solicitor are you? Do you work for one of these no win no fee merchants? What do you mean virtually all offer no win no fee. All what? I hope ypu don’t mean law firms.

You don’t have a case. I say this kindly. The episiotomy and ventouse delivery decision was made by a doctor and for good reason. Had this not been done your daughter may not have been delivered safely and there are untold worse case scenarios that could have unfolded. You could have died. Your baby could have died of suffered really dangerous consequences. Then you really would have had a medical negligence claim. The baby needs to be delivered without delay. The appointment you had with the birth choices person doesn’t know what they’re talking about. I think it would be in really bad taste to go after a medical negligence claim potentially stopping other women having safe and competent deliveries by that doctor/medical team. The stress it causes is massive and a lot of cases are people fishing for compensation. You should follow up with the current gynaecology plan and management. Be thankful for the safe delivery of your children and mindful of the fact that pregnancy and childbirth changes women. Obviously if something is unbearable painful- that isn’t acceptable. But I don’t feel that’s the case here.

I’m a doctor and did my legal/ consent training today . This absolutely was ‘assault’ if you clearly said no to the ventouse.
You would bring a civil case against them for compensation report to GMC for sanctions.

They could only have done this legally if they documented that you lacked capacity at the time in relation to this decision , they explored this at length with you , consulted your NOK as to what your wished might be IF you had capacity and then acted to save the baby’s life. Clearly this did not happen …