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Compensation for failure to diagnose cancer

View profile for Malcolm Underhill
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For victims of medical negligence, the costs can extend far beyond money.  Some may have the length of their life significantly shortened, or be left with life-long disability; but what happens when a medical error causes loss of fertility in a young woman? A case which recently passed through the Court of Appeal considered the implications of infertility due to a significantly delayed diagnosis for cancer.  The claimant, a 29-year-old woman, was left infertile due to negligent medical treatment at Whittington Hospital, when they failed to diagnose cervical cancer.  In this article, we review the details of this case, and the wider implications for compensation relating to medical negligence such as misdiagnosis of a critical illness.

A catalogue of wasted opportunities

Between 2008 and 2012, Whittington Hospital carried out several smear tests on the patient, followed by biopsies in 2012 and 2013, none of which led to the detection of cervical cancer.  The disease (stage II B cervical cancer) was eventually diagnosed in 2013.  On investigation, it was discovered that all of the previous samples during that five-year period had been incorrectly interpreted, and as a result, the patient’s disease had progressed, necessitating chemo-radiotherapy treatment.   She was advised that intervention would most likely lead to infertility, hence prior to treatment, twelve of her eggs were harvested.  In addition to infertility, she incurred serious radiation damage to her bladder, bowel, and vagina, leading to early menopause, painful intercourse, occasional incontinence, and impaired confidence.  These issues both diminished her enjoyment of life and her ability to work.  Whittington Hospital NHS Trust admitted liability for medical negligence.

Following treatment, the claimant decided to seek costs for surrogacy in California, in part due to her negative experience with the NHS and also the favourable Californian legislative framework for surrogacy, which means it is easier to attain proper parental status.  The initial claim was to include costs for surrogacy either using the claimant’s own eggs, or those of a donor.  Citing earlier caselaw the judge at the time rejected the claim for surrogacy in California but did agree to reasonable expenses for a UK surrogacy; however, only for her own eggs, and only for two children (the original claim was to allow for four pregnancies).  This was a significant ruling as under the Surrogacy Arrangements Act 1985 (the Act), commercial surrogacy is illegal, and deemed against public policy.  The judge determined that restoring the claimant’s loss should focus on her inability to have “her” child, not “a” child – hence the reason for rejecting the claim for the use of donor eggs.  The award made was £74,000 per pregnancy and an addition to £160,000 for pain and suffering and 'loss of amenity' (PSAL). 

Due to the refusal to fund surrogacy in California, the claimant appealed.  The Court of Appeal upheld the claim on the basis that the Claimant’s intentions were entirely lawful, as the Act only referred to the UK, and only in relation to commercial surrogacy.  It was therefore determined there was nothing to prevent the claimant seeking surrogacy in California, and that doing so was not contrary to public policy.  In addition, it was decided that due to social changes subsequent to earlier judgments, it was not contrary to public policy to allow the woman to recover the costs of surrogacy in California. 

Medical negligence damages

The case above illustrates just one aspect of the type of compensation (surrogacy) that can be sought in the event of a medical negligence case.    The range of compensation ranges depending on the nature and severity of the injury and particularly the precise circumstances and facts of each and every case considered by the court.  In the case of infertility, In this case, factors such as whether the claimant already had children were taken into account.

If you, or a family member have been the victim of clinical negligence, whether in a private or NHS setting, seeking the guidance of an experienced medical negligence Solicitor with a track history of handling complex claims successfully is critical.  This will allow you the opportunity to focus on your physical and psychological recovery, free of unnecessary financial concerns.

If you wish to talk about any of the points raised in this article, please phone us on 0333 123 9099, email us at enquiries@ibbclaims.co.uk or fill in our contact form. Any discussions you have with us will be in the strictest of confidence

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