Mother loses action over alleged negligence in fertility treatment

A mother of two has lost her High Court action over alleged negligence in the provision of fertility treatment to her.

In a judgment on Thursday, Mr Justice Kevin Cross rejected Kim Hanrahan's case against National Reproduction, trading as Cork Fertility Centre, and Bon Secours Health System Company Limited By Guarantee.

Represented by Patrick Treacy SC, instructed by solicitor Cian O'Carroll, Ms Hanrahan had also sued a consultant obstetrician/gynaecologist, John Waterstone, but the claim against him was discontinued in July 2020.

Mr Justice Cross said, had Dr Waterstone clearly set out his explanation that a letter from him concerning the nature of a fibroid, on which letter much of Ms Hanrahan’s case rested, was a “mistake” and inaccurate, the proceedings, which ran for 13 days, “might well have been avoided”.

Ms Hanrahan (48), who lives near Carrick-On-Suir, Co Tipperary, gave birth to her daughter Jessica in December 2008 as a result of fertility treatment provided by the defendants.

Her second child Ronan was delivered in 2015 by Caesarean section with obstetric care provided by Dr Waterstone but Ronan’s twin brother Oran tragically died in utero during the late course of that pregnancy and was delivered as a still birth.

As a result of Oran’s death, Ms Hanrahan took proceedings against Dr Waterstone which settled in 2018 for a significant six-figure damages sum and an apology from Dr Waterstone.

The judge said Ms Hanrahan remained upset and distressed by the circumstances of Oran’s death.

Her current proceedings concerned alleged negligence by the defendants in fertility treatment provided to her in 2011 and 2012.

All the scans undergone by Ms Hanrahan were reported as normal until June 2012 when, while she was undergoing IVF treatment, a fibroid was noted. The IVF treatment continued and the fibroid was removed by Dr Waterstone in September 2012.

All the experts accepted fibroids in the uterine cavity reduce the chances of a successful pregnancy by IVF and the location of this fibroid, whether or not it was in the uterine cavity, was a central issue.

Ms Hanrahan claimed the fibroid removed by Dr Waterstone must have been present at an initial baseline scan undertaken by another doctor but was not noticed in various scans up to June 2012.

She claimed she suffered pain and distress of a number of failed IVF treatments which were “bound to fail” due to the fibroid and also underwent an invasive laparotomy to remove the fibroid rather than a less invasive procedure.

The defendants denied liability, pleaded the failure to notice the fibroid before June 2012 was not negligent and the fibroid was at all times a type 3 FIGO fibroid, one outside the uterine cavity. They claimed it could have been left in place but, once it was decided to remove it, it was reasonable to do so by laparotomy.

Complaints

The judge noted various complaints about a letter from Dr Waterstone of September 7th, 2012, sent to Ms Hanrahan’s GP, following removal of the fibroid on September 3rd, which referred, inter alia, to the fibroid as “deep” and “protruding into the uterine cavity”.

If the fibroid was protruding into the cavity, it was a FIGO type 1 or type 2 fibroid and the only explanation from Dr Waterstone was the letter was a “mistake”, he said.

Having considered the evidence, the judge concluded it could not be said the defendants failure to identify the fibroid before June 15th, 2012, was a breach of duty.

There was an absence of evidence on this point due to absence of slides which, as was the custom at the time (now changed), were never going to be preserved, he said. This was not a case of evidence being destroyed.

He accepted Dr Waterstone’s evidence his letter of September 7th was “a terrible mistake”. He accepted Dr Waterstone’s recollection of the surgery he carried out in removing the fibroid was correct but that correct view was not reflected in his correspondence or properly reflected in the operation note.

He concluded, as a matter of probability, Dr Waterstone was correct that the fibroid he removed merely abutted and touched the wall of the uterine cavity, causing a tiny hole to appear which had to be sutured, and the fibroid was not ever a type 1 or type 2 fibroid that could have been removed hysteroscopically as the plaintiff claimed.

That meant the decision to proceed with IVF treatment was not a breach of duty, he held.

A successful pregnancy as a result of IVF treatment can never be guaranteed or stated to be the likely outcome, he added. While the defendants own publicity was suggestive of a claim to a greater chance of success than actually achievable, the first IVF attempt after the fibroid was removed was itself also unsuccessful but, happily, the final attempt resulted in the birth of Ronan but, sadly, also resulted in the stillbirth of Oran.