The relatives of two women who died from herpes after undergoing caesarean sections by the same surgeon are bringing a claim for medical negligence against an NHS hospital in the High Court.
Kimberley Sampson, 29, and Samantha Mulcahy, 32, died six weeks apart in 2018 at hospitals in Kent run by East Kent Hospitals University NHS Foundation Trust.
Yvette Sampson, Mrs Sampson’s mother, and Ryan Mulcahy, Mrs Mulcahy’s widower, are pursuing separate legal proceedings against the foundation over alleged failings in care.
They also allege that a surgeon, who cannot be named for legal reasons, was the source of the herpes simplex virus infection in both women.
The hospital denies liability in the cases, saying the two were not exposed to the virus during their surgeries or through the surgeon.
The preliminary hearings in the cases this week marked the latest development in the families’ six-year battle for answers about how the women became infected.
In July last year, coroner Catherine Wood concluded that the two women had died of multi-organ failure as a result of the virus they contracted before or around the birth of their children.
The coroner at the Mid Kent and Medway Coroners’ inquest also said that Ms Sampson and Ms Mulcahy could have been treated earlier when their conditions deteriorated.
Following the investigation into the deaths, the trust’s directors said they “sincerely apologised” for the “additional and unnecessary distress” caused to the families “by failing to answer their questions following the deaths of Kimberley and Samantha and by contributing to delays in the processing of their investigations”.
Mrs Mulcahy’s mother, Nicola Foster, vowed to continue “fighting for the truth” and said the coroner’s findings were “completely inconclusive”.
Her subsequent application to challenge the coroner’s findings in the High Court was dismissed by a judge in February this year.
During an online hearing on Thursday, lawyers for Ms Sampson and Mr Mulcahy argued that their cases should be heard together at trial.
Richard Baker KC, for the relatives, said that in both cases it was argued that the operating surgeon was a ‘common source’ of the infection in the women.
He said that if the cases were not heard together there could be a “strange” outcome with different judges making conflicting findings about the surgeon’s role.
In his written submissions, the attorney argued that the women had suffered a “rare complication,” with their families saying the foundation had not diagnosed the virus “when they began showing signs and symptoms of infection.”
The coroner had previously concluded on the balance of probabilities that it was “unlikely” the infections were caused by the surgeon. The inquest found his hands had been thoroughly washed and he was double-gloved and wore a mask during the procedures.
He said he had no injuries and was not infected, although he had not been tested, the investigation found.
Clodagh Bradley KC, for the charity, said on Thursday that ‘no court can safely conclude that the surgeon was infected with (the herpes virus) because there is absolutely no evidence of that’.
She said a “new” allegation by Mr Mulcahy that he had seen “facial touching” by the surgeon was “incomprehensible” and that the relatives were “trying to make one weak case against another”.
In his written submissions, the lawyer argued that the trust opposed the proposal to join the cases because it would cause “delay, expense and inconvenience” and increase the “physical and mental distress already suffered by the surgeon”.
On Friday, Judge Charles Bagot KC concluded that the two cases should not be joined because there were ‘differences in the way the cases were framed and the issues involved’.
He said linking the claims would be more expensive, complicated and slower, adding that “there is no real risk of conflicting findings being made in these cases”.