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In a first for the UK legal system, our medical negligence solicitors have helped a woman claim compensation for the costs of surrogacy after cancer misdiagnosis left her unable to have children herself.
‘XX’ was first tested for cervical cancer in December 2008. The test came back negative but she experienced symptoms of the disease and returned to the colposcopy clinic multiple times in the following years for further checks. Later tests also came back negative and XX’s symptoms were dismissed as her being neurotic.
In 2013, however, XX was finally diagnosed with cervical cancer. The diagnosis prompted a review of all her previous tests, which found that every sample taken between 2008 and 2013 had been incorrectly or insufficiently reported. The clinic had failed to diagnose XX’s cancer for five years.
At this late stage, doctors advised XX that chemo-radiotherapy was essential but would make her infertile. She had always wanted a family of four and sought second and third opinions from other oncologists.
Unfortunately they confirmed that there was no other option so XX had eggs harvested before starting the treatment. As well as the infertility, XX also suffered radiation damage to her bladder, bowel and vagina and suffers on-going daily symptoms as a result.
XX asked our medical negligence lawyers to investigate the treatment she had recently at the colposcopy clinic from Whittington Hospital NHS Trust. The Trust admitted liability for XX’s delayed diagnosis in March 2016 and a trial to assess how much compensation she deserved took place in June 2017.
Since the Trust’s negligence had left XX infertile, we argued that they should cover the costs of surrogacy that XX now faced in order to fulfil her dream of having a family.
After her experiences in the NHS, XX didn’t feel that she could cope with the uncertainty and lack of legal framework involved with surrogacy in the UK. Instead, she wanted to access surrogacy in the US, where surrogates are properly vetted, properly paid and have their medical expenses covered. The Californian system also provides extra legal security as XX and her partner could become legal parents of the child with a pre-birth parental order.
Surrogacy laws in UK are complicated and the last similar case of claiming medical negligence compensation for surrogacy costs was in 2002. That time, the Court of Appeal ruled against granting compensation.
Unfortunately XX’s case was denied the cost of US surrogacy on the basis of that previous decision. However – for the first time in UK law – the Judge did award XX the costs of pursuing surrogacy for two children in the UK.
Anne Kavanagh, a specialist medical negligence solicitor from our London office, represented XX. She said:
“This was a case where multiple failings by the Trust led to our client facing infertility and lifelong pelvic radiation injuries at the age of 30. Her only means of achieving a family is through surrogacy either in the UK or the US.
“The impact of this was devastating for her but she has held on to the prospect that however complicated, she could regain the life she had expected if she could pursue surrogacy to have her family."
If you or a loved one have been affected by a cancer misdiagnosis, we may be able to help you make a medical negligence compensation claim. Contact us today to find out more.
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