When the choice is no longer yours

Fertility and the choice whether to start or increase the size of your family is a fundamental human right. Just like the right to choose to procreate, we all have the right to choose not to have children at all or to limit the size of our family.

This article will cover a number of issues and examples of both the male and female reproductive system to demonstrate how having the decision regarding reproduction taken out of our hands can have a detrimental effect on the rest of a persons life, physically, psychologically, emotionally, financially, socially and domestically.

Misdiagnosis and/or Delay in Treatment for Gynaecological Conditions

The failure to correctly identify an ectopic pregnancy (or other gynaecological or pregnancy related condition) and /or the delay in treating the same can result in the loss of the uterus, fallopian tube(s) and /or ovaries, which in turn can affect fertility. The removal of one tube (unilateral salpingectomy) will result in a reduced but not impossible chance of conception (50-60%) and the options of fertility treatment are far greater, i.e. natural conception, Intrauterine insemination (IUI) which is a procedure that involves placing sperm inside a woman's uterus to facilitate fertilisation, and In vitro fertilisation (IVF) which is a process by which an egg is fertilised by sperm outside the body. The only fertility treatment option following the removal of both tubes (bilateral salpingectomy ) is IVF, which is a costly and extremely emotional process. Sadly, the loss of the uterus clearly has even greater consequences resulting in the complete loss of the ability to carry a baby.

Misdiagnosis and/or Delay in Treatment in Conditions relating to the Male Reproductive System

There are many conditions suffered by men, including ones caused by medical negligence, which can lead to complete or reduced infertility. The most common are a variety of disorders which can be psychological, hormonal or physical. Testicular damage as a result of medical negligence, i.e. delay in diagnosis and treatment of testicular torsion (the twisting of the spermatic cord, which cuts off the blood supply to the testicle and surrounding structures within the scrotum) or a Variocoele (enlargement of the internal spermatic veins that drain blood from the testicle to the abdomen and back to the heart) can be permanent and there is often a very small window of opportunity to treat these conditions, therefore early diagnosis and treatment of the same is vital for the prospects of future fertility. Delayed diagnosis and treatment of infection and disease can also cause infertility. Some fairly common drugs can also impact on male fertility and erectile / ejaculatory dysfunction and the risks of taking certain drugs should be carefully considered where the preservation of fertility is important.

Negligent Failure to Identify a Birth Defect During Pregnancy

The decision making process in relation to deciding whether to continue with a pregnancy whereby there is significant risk of ill-health to the mother or baby is another right that a woman or a couple have in order to allow them to choose how they wish to spend the rest of their lives. Medicine and diagnostic equipment today allows for early diagnosis of birth defects or maternal concerns, which can prevent a "wrongful birth" claim (a birth which would not have otherwise occurred had the parent(s) had prior knowledge in the early stages of pregnancy of a birth defect and given the choice as to whether or not to proceed with the pregnancy). The psychological and financial implications of raising a child with a physical or mental disability, which could have been avoided (by choice) can again have a detrimental and devastating effect on family life. Compensation in successful claims can lead to thousands or even millions of pounds in damages and financial loss for the lifetime of the injured child and their family.

Failed Contraception

Failed sterilisation in women and vasectomies in men, leading to unwanted pregnancy can lead to severe psychological, emotional and financial distress for both men and women. In cases whereby the failure and pregnancy occurs within one year, on a balance of probabilities, it is likely that the procedure itself was performed negligently and is worth investigation. The prospects of a successful claim is reduced depending on the length of time the procedure has been successful, i.e. if a vasectomy has been successful for 2 or more years, then it is possible that the vas deferens (tube from each testicle which is clamped, cut, or otherwise sealed during a vasectomy) could have reunited and this would then be deemed to be a non-negligent complication of the procedure. Likewise, this can also occur in female sterilisation cases where the tubes reunite over a period of time.

What is Your Claim worth?

The 11th Edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases demonstrate successful claims regarding the female reproductive system attract damages in the region of £7,300 (for failed sterilisation leading to unwanted pregnancy with no serious psychological impact or depression) to £121,000 (for infertility whether by reason of injury or disease, with severe depression and anxiety, pain and scarring). Amielia Campbell-Powell, an Executive in the Clinical Negligence Department, recently settled a medical negligence claim for just under £100,000 where sadly her client, who has no children, lost both fallopian tubes and now has to rely on IVF to fulfil her dream of having a baby. Although the outcome cannot be changed, the settlement will help her to finance the costs of IVF. Within these brackets there are cases where the injured person would not have had any or more children and so the value of the claim would therefore be limited.

Successful claims regarding the male reproductive system attract damages in the region of £4,750 (for cases where sterility amounts to little more than an 'insult') to in excess of £110,000 for the total loss of reproductive organs. Within these brackets there are cases, for example where the injured person has suffered impotence and loss of sexual function and sterility in a young man who hasn't had children which would achieve a higher award than say a much older man who does not intend to have any or more children.

The above awards exclude special damages (financial losses, i.e. costs of fertility treatment / therapy, loss of earnings, travel / medical expenses and any other such past / future losses incurred or to be incurred as a result of negligent medical treatment) and which will be considered and included in any claim for compensation.

Although, it is appreciated that no amount of compensation will change the outcome for people faced with having to deal with life changing events such as loss of fertility or having to raise a child with physical and mental disabilities as a result of wrongful birth, or face the consequences of an unwanted pregnancy, making a claim can put people in a better financial position to allow them to face the future more positively, and of course, bring about changes to ensure that negligence in these types of cases is greatly reduced to prevent the turmoil and anguish created by medical negligence and the lack of care and attention received by medical professionals.

Legal Action

Thompsons Solicitors are specialists in dealing with these types of cases, which can be extremely sensitive, requiring a professional and empathetic approach. Our lawyers are skilled in handling claims on behalf of both men and women faced with the life changing and the psychological effects of medical negligence and damage to the reproductive system resulting in the loss of opportunity to have children or the freedom of choice not have any or more children.

Should you be dealing with or facing the prospects of dealing with such challenges and require general advice regarding any of the issues raised in this article and would like to be put in touch with a member of the team or discuss your individual case in more detail and to find out whether your case has sufficient prospects of success, call us on 0800 0 224 224 or complete one of our online personal injury compensation claim forms.