Infertility in clinical negligence cases


Posted by Elizabeth O'Mahony, 21st June 2017
Having a family of our own is a dream that so many of us have, often from a very early age. After years of taking every possible precaution to avoid, what seems at the time to be, almost inevitable parenthood during our early years, we assume that when we are ready to take that huge step to the next phase of our lives, we can simply throw (pre)caution to the wind and start to have babies whenever we feel like it. Sadly, for a significant number of us, the dream is just that.

Conception, whether for the first time or subsequently,  can very often be more complicated, challenging  and stressful than we were led to believe. Infertility causes heartbreak to thousands of people every year.  The reason that conception proves impossible are multiple and every case is different, and our team often deal with infertility which has come about as a result of clinical negligence.

Case 1

One of my clients miscarried her second baby and received inadequate advice from her local hospital about the management of her “missed miscarriage”. At a time of huge distress, she trusted that the clinicians were giving her comprehensive advice on the options that were available to her. She did not question that what she needed was to have an “ERPC” – evacuation of retained products of conception – a surgical procedure to empty her womb which had to be performed under general anaesthetic. In fact, she could and should have been offered a drug called Misoprostol, which would have achieved the same result in a much less invasive way and with much less risk of complication. Her periods did not resume within a few months of the procedure and further tests showed that she had developed Asherman’s Syndrome as a result of the surgery,  causing the thinning of her womb lining and ultimately leading to an inability to conceive naturally.

Case 2

Another of my clients is the woman who suffered a blocked fallopian tube (known as a ‘hydrosalpinx’) which needed to be clipped. After three failed IVF attempts, it was subsequently discovered that the clip had come off and the toxic fluid had refluxed into her uterus and caused significant damage. She is presently undergoing IVF to try and achieve her dream of becoming a mother.

Negligence

In both cases, we have to establish that the treatment provided fell below that which would be considered reasonable by a responsible body of clinicians in the UK. Neither woman can expect gold standard treatment or “best practise”, but both are entitled to treatment.

In the first case we must therefore establish that the failure to warn my client of the various options open to her was negligent, which we believe we can. In the second case we must prove that either the clip was not applied at all, or that if it was, a failure to apply it adequately led to it falling away. We are hoping that the notes will demonstrate that the clip was not applied at all.

Harm caused

Once the treatment has been shown to be negligent we need to establish that it has caused some specific damage that wouldn’t otherwise have been suffered. For instance, in the first case we must prove that had my client been properly advised of all her options, she would have elected to have the medical, non-surgical option, so would never have developed Asherman’s Syndrome and would now not be facing the possibility that can she can have no further children. The value of her claim for damages will reflect not only for the suffering, distress and loss of quality of life that has resulted, but also the costs of the multiple IVF attempts she has undergone and is still undergoing in a desperate effort to complete her family.

In the second case we must prove that the negligent failure to apply/correctly apply the clips, led to the toxic fluids damaging her womb which would not otherwise have occurred. We will also be claiming for the further private  IVF costs she is now facing, having exhausted the NHS funding that she used for her first three attempts.

For these poor women, who have already been through a gruelling medical ordeal, the thought of bringing a legal claim is something they have had to think very carefully about. The team here at BL Claims, which includes highly specialised solicitors, a doctor, a midwife and two nurses, fully understand how vulnerable and fragile they feel and can guide them sensitively and efficiently through the legal process having developed particular expertise in this area.

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