Whittington to pay £224,000 for woman's surrogacy in US after repeatedly failing to spot she had cervical cancer
PUBLISHED: 10:35 20 December 2018
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A woman left infertile after bungled tests at the Whittington failed to spot that she had cervical cancer has been awarded the cost of having children by surrogate in the USA.
The 35-year-old, named as Ms X in the Court of Appeal judgement handed down yesterday, will be paid at least £224,000 by Whittington Hospital NHS Trust.
She said she was “relieved” by the decision and looking forward to carrying on with her life.
Two smear tests in 2008 and 2012 and two biopsies in 2012 and 2013 at the hospital in Magdala Avenue, Archway, failed to detect any signs of the illness. She was diagnosed with cervical cancer in June 2013 and become infertile because of her radio-chemotherapy treatment. She also suffered damage to her bladder and bowels because of it.
Speaking after the ruling, she said: “I am relieved and delighted that this matter may now be at an end and I can focus on the next stage of my life.
“None of this was my fault. I went to appointments and chased them up even when they didn’t want to hear from me – before I was finally diagnosed in 2013 and my treatment transferred to another hospital.
“The consequences of their negligence have been devastating and life-changing for me but I hope that, if this judgment stands, I can get on with my life as best I can.
“There is still a possibility that the trust will appeal to the Supreme Court but it is amazing to realise that the Court of Appeal judges agreed unanimously that I should be entitled to the costs of surrogacy in the USA.
“The uncertainty and lack of control for me of surrogacy arrangements in the UK was terrifying and not something I would have done unless it was my only remaining option.”
Before her treatment Ms X had preserved some of her eggs to use with a surrogate in California or Britain to have up to four children. She claimed the Whittington should pay for the costs of the four surrogacies, as well as compensation for her distress, known as pain suffering and loss of amenity costs (PSLA).
In a previous ruling in June 2017, High Court judge Sir Robert Nelson awarded her £37,000 for two surrogacies in the UK, a total of £74,000, and £160,000 for PSLA.
But she appealed the decision, arguing the hospital trust should pay for the costs of commercial surrogacy in California. Commercial surrogacy is banned in the UK, and surrogates can only get expenses.
The Whittington Hospital Trust also appealed the amount of compensation awarded.
Lord Justice McCombe, Lady Justice King and Lady Justice Nicola Davies handed down the judgment in favour of Ms X yesterday.
It’s the first time a British court has ruled that the costs of a surrogacy abroad can be covered.
However they decided to reduce the PSLA compensation, as Sir Robert’s initial award of £160,000 had included money towards surrogacy in California. The judges cut it to £150,000.
Anne Kavanagh from Irwin Mitchell LLP, who acted on behalf of Ms X, described it as a “tragic case”
“Due to no fault of her own, my client has suffered grievous injuries including infertility at a young age. It is now almost 10 years since her first smear test was wrongly reported by the Whittington Hospital, when she was 25 years old.
“The Judgment now handed down restates the principle of restorative compensation and reflects the significant changes in the law around Surrogacy itself and within our society which have taken place over the past 17 years, from the introduction of Civil Partnerships and Civil Marriage to social attitudes to Surrogacy and perhaps central to all of that, the widening definition of what constitutes a family.”