The relatives of two women who died of herpes after having a caesarean section performed by the same surgeon are bringing clinical negligence claims against an NHS trust in the High Court.
Kimberley Sampson, 29, and Samantha Mulcahy, 32, died six weeks apart in 2018 in hospitals in Kent run by East Kent Hospitals University NHS Foundation Trust.
Ms Sampson’s mother, Yvette Sampson, and Ms Mulcahy’s widower, Ryan Mulcahy, have filed separate lawsuits against the trust over alleged failings in care.
They also claim that both women’s infection with the herpes simplex virus was caused by a surgeon whose name cannot be disclosed for legal reasons.
The trust denies any liability in these cases and argues that the couple was not exposed to the virus either during the operations or by the surgeon.
This week’s preliminary hearings in the cases marked the latest development in the families’ six-year effort to get answers about how the women became infected.
In July last year, coroner Catherine Wood concluded that the two women had died of multiple organ failure. They had both contracted the disease before or shortly before the birth of their children.
The coroner at the Mid Kent and Medway Coroner’s Inquest also said Ms Sampson and Ms Mulcahy could have been treated earlier when their conditions deteriorated.
Following the inquest into the deaths, the trust’s leaders said they were “sincerely sorry” for the “additional and unnecessary distress” caused to the families by “their questions following the deaths of Kimberley and Samantha not being answered and the resulting delays in conducting their inquests”.
Ms Mulcahy’s mother, Nicola Foster, vowed she would continue to “fight for the truth” and said the coroner’s findings “bring no answers at all”.
Her subsequent attempt to challenge the commission of inquiry’s conclusions before the Supreme Court was rejected by a judge in February this year.
At an online hearing on Thursday, lawyers for Ms Sampson and Mr Mulcahy argued that their cases should be heard at a joint trial.
Richard Baker KC, representing the relatives, said that in both cases it had been argued that the operating surgeon had been a “common source” of the women’s infection.
He said that if the cases were not considered together, the “strange” result could be that different judges would reach contradictory findings about the surgeon’s role.
In his written argument, the lawyer said the women had experienced a “rare complication” and their relatives claimed the trust failed to diagnose the virus “after they began to show signs and symptoms of infection”.
The coroner had previously concluded on the balance of probability that it was “unlikely” that the infections came from the surgeon. The inquest heard that he had washed his hands thoroughly, double-gloved them and wore a mask during the procedures.
During the examination it was said that he had no skin changes and was not infected, but he had not been tested.
Clodagh Bradley KC, representing the trust, said on Thursday that “no court could conclude with certainty that the surgeon was infected with (the herpes virus) because there is no evidence to support this”.
She said a “new” allegation by Mr Mulcahy that he saw the surgeon touch his face was “outrageous” and that relatives were trying to “build a weak case against someone else”.
In a written statement, the lawyer explained that the trust was opposed to the attempt to link the cases because it would cause “delay, expense and inconvenience” and would exacerbate the surgeon’s “already existing physical and mental suffering”.
On Friday, Judge Charles Bagot KC concluded that the two cases should not be merged because there were “differences in the way the cases are presented and the issues in dispute”.
He said linking the claims would be more expensive, complicated and time-consuming, adding that “there is no real risk of conflicting findings in these cases”.