NHS trusts settle for five figure sum in HIV diagnosis negligence claim

3rd January 2018 by

Healys Solicitors secures payment from Western Sussex Hospitals and the NHS after “unnecessary” death of mother from AIDS.

Jonathan Austen-Jones represented the Claimant, the sister and Executrix of the Estate of CW (deceased) who died on 19 March 2014 of AIDs when she was just 33 years old, having been born in September 1980, in a claim on behalf of the Estate under the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of AC, the daughter and dependant of the Deceased under the provisions of the Fatal Accidents Act 1976.

Western Sussex Hospitals was responsible for the management, control and administration of the Warren Browne Unit and Worthing Hospital and the Second Defendant was the body responsible for the provision of medical and other services provided by Sussex Community NHS Trust.

CW was diagnosed HIV positive on antenatal screening in 2001.  From the available medical records it was evident that Worthing Hospital had followed a protocol implemented for the practice management of an HIV positive, pregnant woman and there was reference following the birth of A in May 2002 that there should have been a referral to Dr Andrew Nayagam (consultant in GU/HIV medicine) at Worthing Hospital.

Social Services records described the Deceased as being a woman with moderate learning difficulties, special educational needs, very low self-esteem and someone who needed a lot of care and support of a personal level.  Low IQ scores demonstrated considerable underlying conceptual and expressive difficulties.

Following the birth of A, the Deceased was simply lost to follow-up for the next 11½ years until she presented at Worthing Hospital in December 2013, by which time her condition had become chronic, resulting sadly in her death on 19 March 2014.

Jonathan alleged, on behalf of CW, that the Hospital Trust was negligent in that they failed to inform the Deceased’s GP of her HIV diagnosis, despite having been authorised to do so by the Deceased in April and again in May 2002 and failed again in June 2002 to inform the Deceased’s GP that the Deceased had declined to be followed up by her community midwife.

It was not made clear to the Deceased that neither the community midwife, nor the hospital, would be contacting her again and they failed to ask the GP to encourage the Deceased to make contact with them for follow-up.  The Deceased’s GP was therefore unaware that she was HIV positive and had refused follow-up and, because of this, the GP failed at any time prior to late 2013 to attempt to follow-up the Deceased for her HIV.

With regard to NHS England, Jonathan argued on behalf of CW that they were negligent because the community midwife had failed to inform CW’s GP of her HIV diagnosis as she had been given authority to do so.

Jonathan argued that, had CW’s GP been told of her HIV diagnosis and her initial refusal to accept follow-up, her GP would have made an entry in her computerised records which would have been seen on the front page of her electronic records, so whenever a GP logged on to her records, gentle or repeated attempts would have been made on an opportunistic basis to persuade CW to re-engage and consider anti-retroviral therapy.  On the balance of probabilities, CW would have re-engaged and started anti-retroviral therapy before her CD4 count had dropped to a level which would not have responded to treatment.  If such anti-retroviral therapy had occurred, CW’s life expectancy would have been normal and she would not have died from an HIV/Aids related condition.

Jonathan engaged in a lengthy and protractive investigation regarding the merits of the claim, including communications with CW’s MP and the Coroner into the death of CW, which resulted in a meeting taking place in November 2014 between CW’s family and the healthcare professionals.

Jonathan obtained expert, independent evidence on the issue of breach of duty and causation from an eminent consultant in HIV medicine and separately from an expert independent general practitioner to focus on causation to consider CW’s GP records to confirm, as a matter of fact, whether there was any evidence to suggest that CW’s GP had been informed of her HIV diagnosis (as was initially alleged by the Hospital Trust) and to comment upon, had CW’s GP been told of the HIV status in either May or June 2002, what steps would or should a reasonable GP have taken to raise the issue of follow-up between 2002 and 2013 with the Claimant.

Since the Hospital Trust and NHS England, on behalf of Sussex Community NHS Trust, continued to deny responsibility for CW’s premature death, also arguing that, even had her GP been informed of her HIV diagnosis, it would not have made any difference and she still would have died when she did, Jonathan started Court action against both Defendants on behalf of CW’s Estate, with her sister acting as Executrix.

After Court action had been started, solicitors acting for both Trusts entered into settlement negotiations and CW’s claim was eventually settled for a high five figure sum following advice from Counsel that the issues were finely balanced and there was no guarantee that CW’s Estate would have been completely successful at Trial in establishing causation in particular.

For further information, please contact Jonathan Austen-Jones: jonathan.austen-jones@healys.com