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May update on PIP litigation

Good afternoon,

It has now been six months since the BBC published its first article on the PIP scandal relating to the 30,000 French women affected and perhaps it is appropriate now to reflect on the past and also provide some indication of our prediction for the future.  If you are new to our list of potential claimants I welcome you and hope that this update will assist you with information on how these claims are proceeding through the Court.

Previous claims

In June 2000 the government advised thousands of women who had Trilucent breast implants to have them removed due to the fears associated with the soya based substance used to fill the implants.  These women benefited from a multi-million pound scheme set up by the manufacturers and suppliers to settle compensation.

The women were to receive damages between £5,250 to £8,750 plus any expenses over £500, depending on whether they have new implants inserted and the surgery was paid for.  Women had complications such as infection or scarring would be entitled to more and finally, the scheme would be open-ended so women who develop serious illnesses can come back for more compensation later.

At that time there were around 5,000 women in the UK affected.  Compare to the scale of this latest scandal where estimates of 47,000+ for UK women alone and the scale is global.

Present Claims and the Group Litigation Order (GLO)

We are still busily gathering names of potential Claimants to add to the formal schedule to be provided to the Court as requested. The Schedule is a list of all the victims who would like to claim.  If you have already notified me that you wish to be included, you will shortly receive a pack of information by post.  I anticipate the final mailing to be this week so would ask that if you have confirmed your participation and you have not received my letter by Tuesday 8 May please let me know.

The contents of the Schedule are the basic information about you and where and when you had the surgery. The Schedule is not intended to be a full set of particulars of your individual claim but purely to give the Court and the other parties an indication of the scale of the claims and the numbers of Claimants.  There is no cut off date as yet but there will be in the future. If you were to miss the cut off date to secure your name in the claim then at a later date you would not necessarily be excluded but it is likely you will have to apply to the Court for permission to join and present a claim and that is always a more risky and complicated procedure.

What the future holds and what is my claim potentially worth?

This is a question that we seem to shy away from and partly this is due to lack of case law to consider for other claims as a basis and also the reluctance to apply a blanket amount to such a large group of women who are individuals with unique elements to their claims.

A quick overview of compensation in general is that it falls under two broad categories referred to as:

General Damages – are losses that are without financial proof such as pain and suffering, loss of amenity, loss of prospect, so the actual hurt that you have felt; and

Special Damages – are financial losses such as the cost of the original surgery, follow up treatment, loss of earnings, travel, clothing, etc…  Items that you can produce receipts for or that you paid for.

General damages

The usual method for calculating the value of pain is by looking at two references: the a) Judicial Studies Board Guidelines; and b) previous case law.

Frustratingly, the Judicial Studies Board Guidelines at present has no category for this type of injury but due to the volume of women now affected I hope that the next publication includes a separate category. So we have to look to the present listing for “Scarring” and this gives us the following information:

8 Scarring to Other Parts of the Body

This is an area in which it is not possible to offer much useful guidance. The principles are the same as those applied to cases of facial disfigurement. It must be remembered that many of the physical injuries already described involve some element of disfigurement and that element is of course taken into account in suggesting the appropriate bracket. There remain some cases where the element of disfigurement is the predominant one in the assessment of damages. Where the scarring is not to the face or is not usually visible then the awards will tend to be lower than those for facial or readily visible disfigurement.

A large proportion of awards for a number of noticeable laceration scars, or a single disfiguring scar, of leg(s) or arm(s) or hand(s) or back or chest (male), fall in the bracket of £5,000 to £15,000.

In cases where an exploratory laparotomy has been performed but no significant internal injury has been found, the award for the operation and the inevitable scar is in the region of £5,700.

A single noticeable scar, or several superficial scars, of leg(s) or arm(s) or hand(s), with some minor cosmetic deficit justifies £1,500 to £5,000.

As far as a previous case I refer you to the damages awarded to a victim of a road traffic accident whose implant was damaged.  McCarthy v Davis from January 2000.

The Claimant suffered a ruptured breast implant and had to wait 11 months for reconstructive surgery, which she found traumatic which was the result of a road traffic accident.

She had undergone a right subcutaneous mastectomy with immediate silicone implant in 1986. In 1993 the first implant ruptured and was replaced with an expander-type implant. It was this second implant that was damaged in the accident. After the accident the claimant experienced discomfort in the right breast. Within weeks of the accident the right breast had reduced in size and become distorted. An ultrasound examination showed leakage of the implant and the claimant’s name was put on the waiting list for a replacement implant. This surgery was carried out some 11 months after the accident. The claimant was in hospital for one week after the surgery due to complications. The award reflected the 11-month period when the claimant suffered the discomfort and embarrassment of the misshapen breast, and the additional surgery she had to undergo, which she found very traumatic.

In January 2000 she was awarded £6,500 for her pain and suffering which today is worth £9,359.84.  Her special damages were limited to approximately £500 and this is probably due to the treatment being provided by the NHS.

Special damages

These will include the cost of the original surgery averaging £4,000 and the follow up remove and replace in the same amount and loss of earnings, travel, etc….

We anticipate that the damages will be substantial for our clients but it is too soon to give more than a broad valuation particularly as we do not yet have medical evidence.  For those victims trying to decide whether it is worth the effort to claim I would say emphatically that, yes it is!

Updates in general

The issue has left the mainstream news and for many victims they may feel more anxious than ever. For most claims there are waves of intense activity and then quite times which are to enable the parties to assess the issues.  We are presently in the quiet stage when we, as Claimant Solicitors are gathering evidence, and the potential Defendants will be doing the same.

There will be another surge of activity with regard to the litigation in the next 8 weeks or so and this time will pass very quickly so please do not delay in contacting me to join the existing numbers of Claimants.

In summary

As a reminder I have asked for as much information as possible regarding your implants but please do not postpone registering your name while you gather the evidence.

Thank you again for making contact and I will update you as soon as I have more to report. I look forward to hearing from everyone in the meantime with confirmation that you would like me to add your name to our schedule.