Infertility caused by negligence – turning to IVF

Posted: 31/01/2020

Infertility or reduced fertility can be one of the most difficult situations a person or couple may face. Trying to start a family can be a very emotional journey. Even for fertile couples and singles, conceiving can still take a long time; GPs will advise that up to a year trying to conceive is not necessarily abnormal. Some women report difficulty focusing on anything else when they are trying to conceive, and then feeling devastated and disappointed each month if they do not.

Couples may turn to IVF as a means of fertility treatment, but it is renowned for being an incredibly difficult and stressful process. It has been said that, “IVF is no joke. It's emotionally taxing and physically gruelling. This journey is devastating and upsetting. If that means you need to mute pregnant friends on social media to protect your wellbeing, do not feel guilty.”

The process of IVF requires women to take medication to suppress their natural menstrual cycle. They are then required to inject themselves in the stomach to stimulate the ovaries in order to produce extra eggs, and those eggs are then retrieved and tested for viability. Patients may suffer swelling and bloating during the injection period, and having the eggs retrieved can be very painful. The viable eggs are then fertilised with sperm, and after that it is case of waiting to see, day by day, how many of the embryos survive. One or more of those that do can then be transferred back into the womb. Two weeks later, a pregnancy test will be performed to confirm whether the cycle of IVF has been successful or not.

Younger women are more likely to conceive through IVF, and it doesn’t generally tend to be offered to women over the age of 42. Overall, success rates are approximately 25%, meaning that three out of four women undergoing IVF will sadly be unsuccessful. Costs vary but one cycle of IVF may cost in excess of £5,000.

It must be intensely difficult for couples to deal with a situation of infertility or reduced fertility that has occurred as a result of poor medical care and would not have happened otherwise. Alison Johnson, partner at Penningtons Manches Cooper LLP, has represented women in this situation and has recovered damages for them to cover the cost of IVF if this has been the only viable option left for them to conceive.

One example of such a client was a woman in her early twenties, who was admitted to hospital and diagnosed with a suspected left-sided ectopic pregnancy. During surgery, her surgeon mistakenly thought he detected something amiss with her right fallopian tube, and therefore decided to remove that, rather than her left tube. The woman was discharged home and later suffered a rupture of her left tube. She had to be admitted to hospital again for an emergency procedure to remove her left tube, regretfully rendering her infertile at a very young age. The woman wanted to have a family, and after her surgery, IVF was her only hope of doing so.

With the benefit of expert gynaecological evidence, the clinical negligence team at Penningtons Manches Cooper established that the care provided by the surgeon was negligent. The team recovered £62,500 in damages for the woman, which included a claim for the cost of several cycles of IVF, and also acknowledged her physical and emotional injury and the difficulties caused to her relationship with her partner.

Damages awards for infertility as an injury will typically depend on whether or not the affected woman has already had children and whether her intended family was complete. The degree of physical scarring will also impact on the damages award, as will any psychological injury. On top of the financial cost of IVF itself, and associated financial losses, it is possible to recover damages of up to approximately £150,000 for infertility in certain circumstances.

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