XX v Whittington Hospital NHS Trust
There was an interesting clinical negligence case in the legal news recently, where an injured patient negligently lost her fertility and the Judge awarded her damages for the cost of two future surrogacies.
Due to the defendant’s admitted negligence in failing to detect signs of cancer from smear tests in 2008 and 2012 and biopsies in 2012 and 2013, the claimant developed invasive cancer of the cervix.
The effects of the failure to diagnose the cancer earlier were:
- The development of invasive Stage IIB cervical cancer at age 29, requiring surgery to remove lymph nodes and chemo-radiotherapy
- The complete loss of fertility (XX had no children but had always planned to have her own family)
- A radiation induced bladder injury leading to urinary urgency and frequency, excessive night time urination (nocturia) painful urination (dysuria), blood in her urine (haematuria) and urge incontinence for which she wears pads
- Radiation induced pelvic pain
- Radiation induced bowel injury (radiation proctitis, functional diarrhoea and bile salt malabsorption causing bowel frequency and urgency, loose stools and occasional incontinence)
- Vaginal stenosis and impairment of sexual function
- A constant heavy feeling in both legs with pins and needles, which interferes with her sleep at night
- Loss of hormone production leading to premature menopause
- Anxiety and depression associated with the diagnosis of cancer, the radiation induced injuries to her bowel, bladder and vagina and her inability to conceive or carry a pregnancy
- The risk of recurrence of cancer and the associated fear of this.
The judge, Sir Robert Nelson who handed down his judgment on 18 September 2017, noted that the late diagnosis, and consequent size of the tumour, meant that the claimant was unable to have fertility sparing surgery and therefore suffered a complete loss of fertility. She delayed her cancer treatment twice to take a second and third opinion on whether fertility sparing surgery was indeed no longer available to her, which it was not. On 16 July 2013, she underwent a cycle of ovarian stimulation and egg harvest which produced 12 eggs, which have been cryopreserved by vitrification.
Liability was admitted by the defendant Hospital Trust, with only quantum (the overall value of the claim) in dispute.
Sir Robert Nelson awarded the claimant £580,619 in total, allowing £74,000 for the costs of two future surrogacies in the UK (as opposed to a higher sum claim for surrogacies in the US). She was awarded £160,000for her pain, suffering and loss of past and future amenity.
He ruled: ‘It is not illegal nor contrary to public policy to use an agency to find and use a surrogate mother provided the requirements of the [Surrogacy Arrangements] Act are fulfilled.’ and judged that the claimant should be awarded the £74,000 ‘for surrogacy in the UK, using the claimant’s own eggs, to the cost of surrogacy for two children’.
Darren Tamplin-Compton, Senior Solicitor and Team Leader in Fletchers Clinical Negligence Department welcomed the judgment saying
I applaud the clarity with which the Judge delivered his ruling in this case and the extremely helpful benchmark that it sets for other, similarly affected, women. Whilst liability was admitted by the defendant Hospital, it can only be hoped that it and other, wider, screening facilities learn the significant lessons that need to be drawn from this very unfortunate case. Since the original judgment, the Court has granted permission to the claimant to appeal against the decision refusing Californian surrogacy expenses; watch this space!