The High Court has dismissed a woman’s negligence claim against fertility service providers over treatment in 2011 and 2012, finding that the fibroid at the centre of the dispute did not protrude into or distort her uterine cavity.
Mr Justice Kevin Cross delivered judgment on 11 March 2021. The claim concerned missed detection of a fibroid, continuing IVF treatment after it was identified, and its removal by laparotomy rather than hysteroscopic assessment or surgery. A claim against the second named defendant, Dr John Waterstone, had been discontinued in July 2020; the remaining defendants were the clinic and health system company.
The plaintiff argued that the fibroid was present but missed on earlier scans, and that it had encroached into the uterine cavity by June 2012. She said IVF cycles were therefore unlikely to succeed and that the clinic should not have proceeded. She also contended that the fibroid should first have been assessed hysteroscopically and removed by a less invasive procedure. The defendants maintained it was a type 3 FIGO fibroid outside the cavity, and that the treatment and operation were reasonable.
The judge said the absence of most scan images made the evidence difficult to assess, but was not itself evidence of a breach: the clinic’s practice at the time was not to retain images of routine scans. He found the plaintiff had not established that failing to identify the fibroid before 15 June 2012 was negligent.
The central dispute turned on the fibroid’s position. An operation note and a letter to the plaintiff’s GP described it as submucosal and the letter said it was protruding into the cavity. Dr Waterstone accepted the letter was inaccurate and said it was a mistake. The judge found that the records understandably supported the plaintiff’s interpretation, but accepted Dr Waterstone’s explanation and his evidence that the fibroid merely abutted the cavity. He concluded that the apparent narrowing on later scans was due to the angle of the images.
On that factual basis, the judge found that continuing the IVF cycle after the fibroid was identified did not breach the duty of care. He also found that removing the fibroid by laparotomy, without prior hysteroscopic assessment, was not negligent. The claim was dismissed. The judgment records that special damages of €14,000 had been agreed subject to liability; no damages were awarded after the dismissal.