Their argument was that the Claimant should have been prescribed antibiotics following the removal of the IUCD, which had been difficult and traumatic, and that this would have prevented the infection which ultimately resulted in her infertility.
In 2016, the Claimant decided to remove her IUCD so that she could start a family. She was booked for an outpatient hospital procedure (hysteroscopy) to remove the device, after initial removal attempts at her GP surgery failed.
The Claimant recalled the pain and difficulty of the procedure with remarkable clarity. The IUCD was found to have become embedded within the tissue of her uterus. The doctor tried a number of different instruments before she was finally able to grasp and extract it. The Claimant recalled shaking from the pain, so much so that the procedure almost had to be stopped. The doctor advised that the procedure had been a success and she was now ready to conceive.
After a year, however, the Claimant had not become pregnant. She underwent fertility investigations which revealed that her uterus was full of scar tissue (adhesions). She was diagnosed with Asherman's syndrome, a rare condition that can result in infertility. Her new gynaecologist advised that the adhesions had likely been caused by an infection following the IUCD removal. Although she had not been aware of any infection, the Claimant learnt that there are not always obvious symptoms. Several attempts were made to remove the adhesions, without success. Sadly, attempts to conceive via IVF were also unsuccessful.
The Claimant wrote to the Royal Berkshire Hospital requesting answers as to how such a terrible outcome had occurred. One of the questions she posed was why she had not been prescribed antibiotics at the time of the procedure. The Trust responded expressing sympathy but denying any wrongdoing in failing to prescribe antibiotics. The Claimant still felt strongly that errors had been made, and so set about finding legal representation.
The Legal Team
The Claimant instructed Jonathan Zimmern, a partner in Fieldfisher's medical negligence team. Jonathan was assisted by Sarah Kingsley Fried.
Jonathan and Sarah then instructed Christopher Johnston KC of Serjeants' Inn Chambers, a barrister who had recently represented a claimant in the high-profile infertility case of XX v Whittington Hospital NHS Trust.
The claim was very complex from a medical perspective. At the outset, there were multiple allegations of negligence, most of which fell away by the time of settlement. The remaining, central allegation, was in relation to the failure to prescribe antibiotics.
It was argued on behalf of the Claimant, that while antibiotics are not generally required in such cases, all reasonable Consultant Gynaecologists would have prescribed them in the Claimant's specific case because of an increased risk of infection; and that antibiotics would have prevented the infection, adhesions and infertility.
The damages claimed, included sums for:
- The Claimant's pain and suffering as a result of her infertility, including the significant impact on her mental health.
- The cost medical treatment – the Claimant paid privately for a fertility investigations and several rounds of IVF.
- The cost of surrogacy – happily, during the course of the legal claim, the Claimant and her husband were able to have a child via surrogacy. This was a long, difficult, and expensive process. The claim included the surrogacy costs for their first child and for one child in the future.
- Loss of earnings – the Claimant's work was disrupted for several years during the course of fertility treatment and the surrogacy process.
The Claimant's case was due to go to trial at the Royal Courts of Justice in March 2023, but settlement was reached successfully in a meeting between the parties in February 2023.
The Claimant received a six-figure settlement, which will provide the funds to enable her and her husband to complete very family via surrogacy.
The Claimant said: "Instructing Fieldfisher we felt in very capable hands, they were always honest about the prospects of success in our case, kept us well informed and fought our case to a successful conclusion. As well as being knowledgeable they were friendly, approachable and empathetic"
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