Our medical negligence solicitor, Anne Kavanagh, helped a woman get compensation after her doctors failed to diagnose her cervical cancer, leaving her unable to have children. The woman’s claim went all the way to the Supreme Court, who agreed she should get compensation.

In 2008, Lucy* had a smear test which should have shown that she had cervical cancer. But staff at the Whittington Hospital NHS Trust reported the results incorrectly and thought she was in the clear. Lucy only found out that she had cancer seven years later in 2013.

Between 2008 and 2013, Lucy’s doctors had other opportunities to properly diagnose Lucy’s cervical cancer, but they kept missing it. In June 2013, Lucy finally got the news that she would need chemo-radiotherapy immediately because her cancer was now so serious.

Before Lucy’s treatment, she had her eggs harvested in case the chemo-radiotherapy affected her fertility. Although the treatment did help keep her cancer under control, doctors told Lucy that she wouldn’t be able to get pregnant in the future. This meant she’d have to use surrogacy if she wanted to have a family of her own in future.

On top of the devastating news of not being able to have her own children, Lucy also suffered permanent damage to her bladder and bowel.

How We Helped

Lucy contacted our medical negligence team to see if we could investigate the care she received from the NHS Trust.

Anne Kavanagh, a partner in our medical negligence team, worked with Lucy to look at everything that happened since 2008.

We got evidence from medical experts who found that the NHS trust had reported Lucy’s original smear test and biopsy incorrectly in 2008. If the Trust had reported Lucy’s results correctly, they would’ve picked up that Lucy had cervical cancer. This would mean that Lucy could’ve had a much simpler treatment which would’ve had no impact on her fertility.

We made a medical negligence claim against the Whittington Hospital NHS Trust to help Lucy get compensation for the mistakes that the trust made. Lucy wanted to use any compensation to help pay for surrogacy costs as this was now the only way for Lucy to start a family.

Lucy specifically wanted to look at surrogacy options in California in the USA. This is because California has laws that would make Lucy the legal parent of the child before it’s born. These laws would give Lucy more security during the surrogacy process than she’d get with a UK surrogate.

In the UK, Lucy would only be able to become the legal parent after the child is born. The surrogate mother will remain the legal parent of the child until a court order changes the child’s birth certificate. This can lead to complications if the birth mother changes her mind. It’s also a longer process than in California.

Lucy didn’t want to go through any delays after everything she’d already experienced. We helped get expert psychological evidence to show that Lucy would struggle to mentally cope with the extra uncertainty that the UK surrogacy system could bring.

Lucy’s claim went to the High Court and the Court of Appeals who ruled that Lucy was entitled to compensation to cover the costs of surrogacy in California. Unfortunately, the NHS Trust appealed this decision which meant we had to take the claim the Supreme Court.

The Supreme Court Ruling

At the Supreme Court, we presented our evidence that the NHS Trust failed to diagnose Lucy’s cancer properly which meant she could never get pregnant. The Trust had many opportunities to detect Lucy’s cancer, but they didn’t. The Trust also admitted that they were negligent and should’ve acted quicker.

This negligence left Lucy with permanent medical issues but it also affected her mental state. Lucy was already dealing with the devastating news that she’d never be able to fall pregnant. On top of this she would also have to deal with the surrogacy process, which could come with its own complications, especially in the UK.

After a 10 year ordeal, Lucy finally got the news she wanted. Lady Hale, Supreme Court president, ruled that Lucy should receive funded surrogacy in the USA. She also stated that the Court of Appeals had made the right decision in the first place and she rejected the appeal of the NHS Trust.

Anne Kavanagh said:

“The only option available to our client in starting a family is through surrogacy, using her own eggs which were harvested just before she started chemo-radiotherapy, as well as using donor eggs.

“There is an established legal system in place in California which ensures that the interests of all involved, the surrogate, the commissioning parents and any resulting child, are properly safeguarded.

“Our client is relieved that this matter, which has consumed more than 10 years of her life, is over. We will continue to support her as she now attempts to look to the future and hopefully realises her dream of having the family she has always wanted."

If you or a loved one has suffered due to a cancer misdiagnosis, contact our team today on 0370 1500 100 to find out how we can help.

*Not client’s real name.

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