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Sodium Valproate – the way forward for claims and compensation | Medical Negligence and Private Harm Weblog | Kingsley Napley

Sodium valproate (model names embody Epilim and Depakote) is a drug to deal with epilepsy, bipolar dysfunction and migraines which, if taken in being pregnant, is related to a major threat of delivery defects and developmental problems typically often called Fetal Valproate Syndrome (FVS).

Given the breadth of the signs of FVS, it could be a few years in some cases earlier than it’s clear that an individual is affected by this. Unsurprisingly, longstanding issues in relation to this medicine have resulted in comparisons with the Thalidomide scandal.

A 2022 investigation by the Instances reported that medical doctors knew in 1973 that the drug posed a threat to unborn infants and stated that some 50 years and an estimated 20,000 disabled infants later, it was nonetheless being prescribed to pregnant ladies.

Current proof additionally reveals that, since April 2018, 315 females on a register of valproate customers underneath the age of 54 have been prescribed the drug throughout their being pregnant. Right here I take a look at the state of affairs because it stands now and the long run for acquiring compensation for many who have been harmed.

The info are harsh – if sodium valproate is taken in being pregnant, as much as 4 in 10 infants are susceptible to developmental problems and roughly one in 9 are susceptible to delivery defects. These can embody spina bifida, malformation of the limbs and facial and cranium malformations.

The Hughes Report

Affected person Security Commissioner Henrietta Hughes has this month printed a report recommending a publicly-funded redress scheme for these affected. This follows a report from the Unbiased Medicines and Medical Units Security Evaluate in 2020 referred to as ‘First Do No Hurt‘. This detailed that there had been inadequacies involving healthcare suppliers, regulators, skilled our bodies and pharmaceutical producers. The report concluded that it had taken far too lengthy for critical motion to be instigated to cut back the numbers of girls who take valproate throughout being pregnant whereas being unaware of the dangers.  

Issues have continued regardless of growing steering and rules over time. For instance, the Nationwide Institute for Well being and Care Excellence (NICE) printed pointers in 2004 on informing sufferers of ‘childbearing potential’ in regards to the dangers. Additionally, prescription necessities have been tightened by the Medicines and Healthcare merchandise Regulatory Company (MRHA) in 2018 when it set out that valproate shouldn’t be utilized in a lady capable of have kids with out there being a Being pregnant Prevention Programme (PPP) in place.

The Hughes report discovered that hundreds of youngsters who have been uncovered to valproate now have studying and bodily disabilities with many being unable to stay impartial lives. Ms Hughes means that underneath a redress scheme there ought to be interim funds to eligible individuals – adopted by potential additional payouts underneath a ‘Foremost Scheme’.

New Rules

The MRHA have now produced a public assesment report by which they set out recommendation that no-one underneath the age of 55 ought to be began on valproate except two specialists independently think about and doc that there is no such thing as a different efficient or tolerated remedy. Guidelines have been additionally launched in 2023 to make sure sufferers obtain their medicine within the producer’s authentic full packs which show all related warnings.

Authorized claims

A authorized declare by a bunch of affected households towards the drug producer, Sanofi, issued in 2004, was discontinued in 2010 after funding was terminated by the Authorized Providers Fee. This left many uncompensated for very important accidents.

The Hughes report refers to there being some progress in France in relation to a category motion towards Sanofi. Nonetheless, the report states that (additionally in relation to pelvic mesh) ‘it appears unlikely that for both product we’ll see giant scale group actions in England’.

Medical Negligence Claims

Medical negligence claims – these regarding failures in medical care relatively than actions towards product producers – will stay potential for some, together with probably the place there was a failure by a physician both to supply correct data, or to prescribe valproate appropriately. Claims may additionally be potential towards pharmacists, for instance if right warnings weren’t in place on the medicine field or the proper leaflet was not enclosed with the medicine.

Ms Hughes says in her report that limitation intervals have been a hurdle to some attempting to deliver authorized motion. I’d strongly advise anybody who considers that they could have a declare however are exterior the usual limitation interval for a scientific negligence case to hunt recommendation from a specialist solicitor since there may nonetheless be a method ahead.

Ms Hughes additionally factors out {that a} new ‘claims gateway’ has been arrange on NHS Decision’s (NHSR) web site in relation to valproate scientific negligence claims. NHSR is the physique which offers with claims towards the NHS. The positioning units out an alternate process to a typical authorized declare, whereby instances are assessed by solicitors performing for NHSR. In the event that they think about that the authorized take a look at for scientific negligence has been met then a suggestion could also be made with out the necessity for Courtroom involvement.

As an skilled scientific negligence solicitor performing solely for claimants, I’ve issues about reliance on such an alternate ‘gateway’. Clearly NHSR appointed solicitors wouldn’t have an obligation of care to behave in one of the best pursuits of unrepresented Claimants.  NHSR appointed attorneys solely have an obligation to their very own shopper and to the courtroom. Solely a solicitor appointed by the household / the injured social gathering can correctly advise the injured social gathering on all acceptable points, together with the worth of their declare. A specialist Claimant solicitor will get hold of the entire knowledgeable proof wanted to succeed in one of the best end result and likewise have the ability to cut back the stress for claimants by advising them clearly and supporting them all through the method of a authorized declare.

Reflections on a redress scheme

In the end, Ms Hughes doesn’t have the required authority to arrange a redress scheme. The choice is one for the Authorities. Clearly there are giant numbers in want of compensation. Nonetheless, the Hughes report recognises that such a scheme might lead to awards of much less monetary worth than these which might be awarded by the Courtroom in a profitable authorized motion.

A scheme which makes a contribution in direction of the losses that folks have suffered is just not equal to an award of damages in a profitable authorized declare whereby the Courtroom will endeavour to place an injured individual, as far as potential, within the place they’d have been in with out the negligence. For my part, a redress scheme would nonetheless present some much-needed assist for these with no obvious authorized choices.


When you have any questions, please contact James Bell in our Medical Negligence and Private Harm crew. 



James Bell is the top of our Medical Negligence and Private Harm observe and joined the agency in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence instances for over 20 years.



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