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Case Study

Commercial surrogacy costs for woman who suffered serious birth injury at Queen Charlotte Hospital

M was injured following the birth of her first child at the Queen Charlotte Hospital in London. She suffered a rectovaginal fistula that should not have happened and was likely caused during the course of a repair of a tear.

Sam Critchley obtained supportive expert evidence from an obstetrician and sent a Letter of Claim early in the investigation. Helpfully, the Defendant admitted liability, but denied the extent of the injuries. A formal apology was also made and the hospital agreed that judgment be entered at court. We began court proceedings and obtained further expert evidence to quantify the claim.

The Claimant experienced severe pain as a result of the fistula. She underwent around seven unnecessary operations and had a temporary stoma, which was very distressing. Following the last, supposedly routine repair operation, she was left with chronic and disabling pain. We instructed a pain expert who suggested that M would properly be classified as disabled under the Equalities Act 2010 considering her injuries. This operation took place during litigation and considerably changed the value of the claim.

M also suffered major depression and anxiety, which affected her professionally, domestically, socially and intimately. Her psychiatric condition amplified the subjective experience of pain.

Before her injuries, M had a successful career. She quickly realised upon her return to work, however, that she would not be able to continue working full-time.

The combined effect of her injuries meant that she could not contemplate another pregnancy. The only realistic alternative would be IVF surrogacy. The claimant would always have required IVF for a further child and already had embryos stored in the US. M's initial plan was to find a surrogate in the UK.

When M's case began, legally, it was not possible to recover the costs associated with a commercial surrogacy arrangement, which would have more certainty than the voluntary arrangements in the UK. During the course of the case, the judicial decision of XX v Whittington Hospital NHS Trust [2017] made it possible to recover US surrogacy costs, but the Defendant appealed that decision. We preserved an argument that M could claim the cost of an international commercial surrogacy arrangement pending the outcome of the appeal.

M and her husband joined three UK-based surrogacy organisations during their claim to try to find a surrogate, but were unsuccessful. By the time of mediation, it was M's position that she and her husband would need a commercial surrogate to complete their family.

The main areas of dispute in the case related to the loss of earnings and the surrogacy costs. We were able to secure damages of £475,000 during mediation, enabling M and her husband to pursue their dream of having another child.

Contact us

For further information about birth injury claims and clinical negligence claims, please call Samantha Critchley on 020 7861 4263 or email samantha.critchley@fieldfisher.com.

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