Unnecessary ERPC causes Asherman's syndrome and infertility for woman suffering miscarriage

Arti Shah achieved a six-figure settlement in a case involving negligent treatment of missed miscarriage following which Susan* has devastatingly been rendered infertile.

In early 2013, Susan became pregnant. A few weeks later she experienced spotting and booked an ultrasound scan. She was advised she had suffered a missed miscarriage.

She subsequently attended St Mary's Hospital, Paddington for a first evacuation of retained products of conception (ERPC) procedure. Prior to the procedure, she had inquired about a risk of Asherman’s syndrome, listed on a leaflet given to her by a midwife. 

Asherman’s syndrome is a condition where the uterine walls adhere to each other with consequent infertility because the uterus is incapable of carrying a fetus. She was advised it was rare and "never happens".  Based on this advice, Susan opted to undergo the procedure. 

At a follow up scan a few days later, retained products of conception were identified. She was advised she would need to undergo a second ERPC procedure under ultrasound guidance. When Susan expressed concern, she was advised there would be no risk of damage. Asherman's syndrome and/or the risk of adhesions were not discussed with Susan. She reluctantly agreed to undergo the second ERPC procedure a few weeks later.

Post second ERPC, Susan continued to experience vaginal bleeding. This eventually stopped, but by July 2013, her periods had not recommenced. Her own research led her to consider Asherman's syndrome to be the cause. Susan's GP referred her to hospital. After several investigations, including with a private consultant, it was confirmed that she was in fact suffering from Asherman's syndrome. The cause was the unnecessary second ERPC. She was subsequently advised that she would never be able to conceive naturally.

Susan has undergone several procedures subsequently to attempt to have children. She has privately funded travel abroad for costly IVF treatment and surrogacy. Unfortunately, to date this has been unsuccessful. 

Arti obtained expert evidence that strongly confirmed Susan had been subjected to an unnecessary procedure. She then served a Letter of Claim on the Trust.

The Defendant admitted liability that the second ERPC procedure was unnecessary and unwarranted based on medical evidence. It was further admitted that she developed severe adhesions because of the second ERPC and has had to undergo both IVF treatment and surrogacy as a result.

Proceedings were served and judgment entered based on admissions in the defence. 

Susan was advised by several medical professionals that her only realistic option of having children was via surrogacy. 

Detailed quantum investigations commenced, with the central issues involving Susan's fertility options in a novel and developing area of the law – on public policy grounds, entering into commercial surrogacy arrangements in the UK is illegal, whereas in jurisdictions such as America, well established regimes exist with more certainty attached to agreements. 

Key to Susan's claim was the case of Briody v St Helens & Knowsley Area Health Authority (2002) QB 856 which reinforced the stance that Californian surrogacy arrangements were unlawful in the UK. This issue was revisited in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) which also upheld the decision in Briody. 

Both cases were key to negotiating settlement for Susan, with leading Counsel involved considering the wider reaching implications of the case. 

Expert evidence was served by both parties and a settlement agreed in Susan's favour. A trial had been listed to commence four months later. 

At the end of the case, Susan said: 

"Arti from the very first meeting was professional, understanding and compassionate to our case. When others we had approached previously did not take our case forward, Arti has pursued our case relentlessly and her knowledge, experience and empathy shines through every time we meet her. Arti has been an immense source of support throughout this difficult process and we are eternally grateful for everything she has done for us. We would have no hesitation in recommending Arti to anyone."

Arti said: 

"This has been a long, emotional journey for my client - the impact of Susan’s infertility on her and her husband cannot be overstated: a young couple in their first pregnancy with hopes of starting their family. I truly hope the damages achieved will help them achieve their dream of having children in the not too distant future. 

"From a professional perspective, it has been hugely rewarding to be involved in an extremely interesting case relating to surrogacy Infertility issues are a fast-developing area of law given recent advances around IVF treatment and surrogacy. The case has raised important questions as a result."

* name changed

Contact us

For further information about hospital negligence claims and medical negligence compensation claims, please call Arti Shah on 03304606739 or email arti.shah@fieldfisher.com.
Alternatively

• You can speak to our medical negligence lawyers on freephone 0800 358 3848
• email us: personalinjury@fieldfisher.com
• Complete the short online enquiry form

All enquiries are completely free of charge and we will investigate all funding options for you including no win, no fee. Find out more about no win, no fee claims.