Gynaecology – Surgeon not liable for failing to remove all retained products of conception: X v Walsall Healthcare NHS Trust (Coventry County Court, 21/5/2015 – Judge Mithani QC)

Prior to the relevant procedure on 26 October 2009, X had given birth to four children by way of Caesarean section. In addition, she had undergone three terminations, two miscarriages and an ectopic pregnancy. In September 2009, X discovered that she was 12 weeks pregnant. She wished to have a termination and was initially referred to the British Pregnancy Advisory Service. However, they were unable to assist her with a termination because they considered she needed to see a specialist. Consequently, she was referred to the defendant trust. She came under the care of Mr Ohizua, a consultant gynaecologist. She did not dispute the assessment undertaken by Mr Ohizua in which he advised her as to options, the risks associated with each method of termination and the steps which would be involved. During his assessment, the consultant gave careful consideration to X’s medical history. He concluded that she could be at high risk of abnormal adherence of the placenta, which would carry a high risk of additional bleeding. As a consequence, he undertook an ultrasound scan before deciding whether surgery was feasible. This indicated that X had a posterior placenta, which meant a lower risk than an anterior placenta. He therefore devised a plan which included a first stage of administration of drugs with a view to termination. Unfortunately, this proved unsuccessful and therefore Mr Ohizua proceeded to the second stage of his plan, namely surgical termination. This operation occurred on 26 October 2009. Amongst the advice he gave prior to obtaining consent was that surgery might be ‘incomplete’ to the extent that there could be retained products of conception. X agreed to proceed to surgery. In his witness statement Mr Ohizua described how, following removal of the foetus, he undertook suction to ensure removal of any parts which might have remained. He also employed ultrasound as a visual aid. Once he had completed the operation he performed three checks, in keeping with his usual practice, to ensure that most of the products of conception had been removed: