Long-running surrogacy claim involving negligent C-section causing Asherman's Syndrome
Arti Shah settled a long-running surrogacy case against Royal Cornwall Hospitals NHS Trust three weeks before trial.
Arti acted for Anna*, who underwent a negligent Caesarean section delivery, causing her to develop Asherman's syndrome, making it difficult to carry another baby.
Anna was admitted to the Hospital at 40+ weeks' gestation. Her waters had broken in the car on the way to hospital and she repeatedly requested a Caesarean section due to her failure to progress.
Her requests were denied, until eventually, a category 3 Caesarean section was agreed to. This was performed early the next day. Following delivery of a baby boy, Anna's placenta was delivered through controlled cord traction and the uterine cavity was noted to be empty. In fact, Anna had lost 1.3 litres of blood and a significant amount of retained placental tissue in the uterine cavity was later discovered.
Anna was transferred to ICU. Three days later, a scan identified retained products of conception (RPC). An evacuation procedure (ERPC) was performed two days later. Thereafter, Anna developed rigors and sepsis. She was discharged home 10 days after being admitted. She remained unwell at home.
Two weeks later, Anna received a letter from a consultant at the Hospital, informing her that examination of the tissue removed at the ERPC had shown infected retained products of conception. She attended hospital a week later, where she underwent a hysteroscopy procedure, the first of six in total, and which identified extensive scarring in the uterine cavity.
A few weeks later, she underwent a further hysteroscopy, during which her uterus was perforated.
A month later, the consultant informed her that there was evidence of infection at the time of the Caesarean section and that the uterus had to be exteriorised for a significant time while it was assessed and repaired, He referred Anna to a Consultant Obstetrician and Gynaecologist at Southmead Hospital, Bristol.
Five months later, Anna underwent a diagnostic laparoscopy and hysteroscopy where she was diagnosed with severe Asherman’s syndrome. In correspondence, 70 per cent of her uterus was described as having been 'obliterated'. Anna had always wanted three children, and the only way forward would be surrogacy.
Anna researched solicitors and contacted Arti, who had been recommended to her by three separate sources, including a previous client who had brought a similar claim.
In May 2020, Arti sent a Letter of Claim to the Trust, detailing the negligence. Liability was admitted in full in December 2020. The Defendant accepted:
- Failure to ensure the uterine cavity was empty prior to the completion of the Caesarean section, and
- Anna's Asherman’s syndrome would have been avoided
No admissions were made regarding Anna's fertility and options for having more children.
Judgment was entered into by consent in March 2021 and Arti served reports obtained on behalf of Anna on the Defendant. This included the costs of IVF and surrogacy in the US.
The claim progressed but, in December 2021, Anna discovered against all odds that she was pregnant. This was an extremely high-risk pregnancy and the case was put on hold until the outcome was known. Anna delivered a 'miracle' baby girl in August 2022, shortly after which the case resumed. Sadly, Anna had to undergo a hysterectomy following delivery, which meant she can longer carry her own children, leaving surrogacy as her only option to complete her family.
The parties agreed to meet but settlement could not be agreed.
Further updated evidence was served, including from leading experts in IVF/fertility, and surrogacy.
Unusually, a second meeting was arranged, but settlement again could not be agreed. Many of the arguments turned on UK v US surrogacy. Anna had in fact already attempted surrogacy in the UK prior to her pregnancy, but the surrogacy arrangement had fallen through.
Arti began preparations for trial, scheduled for November 2023.
Three weeks before trial, a six- figure sum was agreed:
Arti commented:
"This has been a long running case, with many unexpected twists and turns. I am pleased that we have been able to reach agreement with the Trust, which provides Anna with sufficient funds to pursue surrogacy in the US, and allow her to complete her family in the way she has always wanted."
Thanks to Counsel, Pritesh Rathod at 1 Crown Office Row, who also worked with Arti in the previous surrogacy case which also settled for six figures.
*name changed
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