High Court: Medical negligence claim arising from IVF treatment rejected

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 183
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Kevin Cross

Giving the judgment in the case, Mr Justice Kevin Cross determined that there was simply not enough evidence to support a claim in medical negligence on the balance of probabilities. However, the court was far from satisfied with the manner that the defence had been conducted.

Background

The plaintiff suffered from fertility issues and decided to undergo IVF treatment with the defendants. The doctor, Dr John Waterstone, oversaw the treatment at the National Reproduction (Cork Fertility Centre) and the Bon Secours Health System. The plaintiff had her first child via IVF in 2008 and gave birth to her second child in 2015.

Unfortunately, her second child’s twin brother did not survive the pregnancy and was delivered as a stillbirth. The plaintiff issued proceedings against Dr Waterstone for her child’s death and a six-figure settlement was reached in 2018.

The plaintiff also issued proceedings arising from the pain and suffering caused by the manner in which she was treated by the defendants. The proceedings were discontinued against Dr Waterstone but continued against the other defendants in a thirteen-day hearing between December 2020 and February 2021.

In 2011, following the birth of their first child, the plaintiff returned to the defendants’ facility to conceive a second child. However, despite two attempts at fertilisation, the plaintiff did not become pregnant. In May 2012, the plaintiff decided to undergo another round of treatment, which required a further painful procedure to harvest egg cells.

It was only in June 2012 that a fibroid was noticed in a scan. Fibroids are small growths that occur in the uterine cavity and can have a significant impact on fertility. They are also slow growing.

Up until that point, all scans had been returned as normal. Only a few scans of the fibroid and uterus were retained by the defendants. It was initially determined by Dr Waterstone that the fibroid did not need to be removed.

After further unsuccessful round of IVF and a consultation with Dr Waterstone, the plaintiff decided to have the fibroid removed. Subsequently, in July 2012, she underwent another painful and invasive procedure called a laparotomy.

In her action, the plaintiff alleged that she had suffered painful and invasive IVF procedures which were “doomed to fail” due to the presence of a fibroid in her uterus. The plaintiff claimed that, due to the slow growth of fibroids, the defendants should have identified the fibroid in earlier scans and were negligent in failing to do so. She also alleged that the defendants were negligent by using the laparotomy procedure to remove the fibroid rather than a non-invasive procedure called a hysteroscopic myomectomy.

The plaintiff’s case was made more difficult due to the lack of evidence that was retained by the defendants. At the time, it was industry-standard to not retain scans and photographs in the fertility clinics. As such, the experts on both sides were relying on a very small number of scans to assess the claims of negligence. Despite the poor evidence, the plaintiff’s experts maintained that there was evidence that the fibroid was obstructing the uterine canal.

The defendants had maintained that they were not negligent in the case. It was claimed that the fibroid was not actually protruding into the uterine cavity but was instead sitting on the outside. As such, it was said that the fibroid did not have a significant impact on the plaintiff’s IVF procedures and the decision to remove the fibroid was marginal. Given the position of the fibroid, Dr Waterstone argued that the laparotomy procedure was appropriate.

However, the plaintiff argued that this defence was undercut by a letter which was sent by Dr Waterstone to the plaintiff’s GP. The letter stated that the fibroid was small but “very deep and protruding into the uterine cavity a tiny opening, inevitably, was made in the endometrium”.

High Court

In considering the case, Mr Justice Cross stated that he was “handicapped by the dearth of evidence” regarding the plaintiff’s scans. However, he noted that Dr Waterstone’s evidence was that the fibroid did not protrude into the uterine cavity or distort the endometrium. The evidence stood in contrast to the contents of the letter to the GP.

It was contended by the defendants that this letter was simply a “terrible mistake”, resulting from Dr Waterstone not paying satisfactory attention when he was dictating the letter. The first time this claim was made was during Dr Waterstone’s evidence.

Having regard to his assessment of the evidence, the court determined that Dr Waterstone was genuine and honest when he claimed that the letter to the GP was mistaken. The court was not prepared to make a finding of deliberate deceit, although it was noted that there were “great difficulties” with an experienced practitioner making such mistakes.

Further, the court determined that, as a matter of probability, the fibroid did not encroach on uterine canal as claimed by the plaintiff’s experts. The court considered that any appearance of encroachment was caused by the angle of the available slides. There was also a suggestion that the plaintiff experts’ views were coloured by the contents of Dr Waterstone’s letter. As such, the court was satisfied that, based on the expert evidence, the fibroid could not have been removed using hysteroscopic myomectomy.

In light of these findings, the court held that the plaintiff had not proven her case on the balance of probabilities.

However, Mr Justice Cross held that Dr Waterstone substantially contributed to the case running in the manner it did due to the contents of the letter to the plaintiff’s GP. Further, the court was critical of Dr Waterstone’ failure to provide any explanation for the mistakes in the letter prior to giving evidence in the case. The court said that “had he clearly set out his explanation for the letter and how the operation note was to be interpreted notwithstanding that letter, these proceedings might well have been avoided. In this regard, the conduct of the defendant was to a significant extent responsible for the bringing of this case.”

Conclusion

The court dismissed the plaintiff’s case.