The plaintiff had alleged that the defendants had failed to correctly recognize a fibroid in her uterus, which caused a number of ineffective and painful IVF procedures.

Giving the decision in the case, Mr Justice Kevin Cross decided that there was just not enough evidence to support a claim in medical negligence on the balance of probabilities. On the other hand, the court was satisfied with the manner that the defence was conducted.


The plaintiff suffered from fertility difficulties and decided to undergo IVF treatment with the defendants. The doctor, Dr John Waterstone, oversaw the treatment at the National Reproduction (Cork Fertility Centre) along with the Bon Secours Health System.

Regrettably, her second child’s twin brother didn’t survive the pregnancy and was delivered as a stillbirth. The plaintiff issued proceedings against Dr Waterstone because of her child’s death along with a high-value settlement had been reached in 2018.

The plaintiff also issued proceeding arising out of the pain and distress brought on by the way she was treated with the defendants. The proceedings were stopped against Dr Waterstone but continued against the other defendants at a thirteen-day hearing involving December 2020 and February 2021.

In 2011, following the arrival of the first child, the plaintiff returned to the defendants’ facility to conceive another child. However, despite two attempts at fertilisation, the plaintiff didn’t become pregnant. In May 2012, the plaintiff decided to undergo another round of treatment, which necessitated an additional debilitating procedure to harvest cells.

It was only in June 2012 that a fibroid was noticed in a scan. They’re also slow growing.

Up till that point, all scans were returned as ordinary. Only a few scans of the fibroid and uterus have been kept from the defendants. It was initially ascertained by Dr Waterstone 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. Afterward, in July 2012, she experienced another painful and invasive procedure called a laparotomy.

Within her action, the plaintiff alleged that she had endured painful and invasive IVF procedures which were”doomed to fail” because of the existence of a fibroid inside her uterus. The plaintiff claimed that, as a result of slow development of fibroids, the defendants should have recognized the fibroid in earlier scans and were negligent in failing to do so. She also alleged that the defendants were negligent using the laparotomy procedure to remove the fibroid rather than a noninvasive procedure called a hysteroscopic myomectomy.

The plaintiff’s case was made more difficult because of the lack of evidence that was retained by the defendants. At the time, it had been industry-standard to not keep scans and photos in the fertility clinics. As such, the experts on either side were relying upon a tiny number of scans to assess the claims of neglect. Despite the inadequate signs, the plaintiff’s experts asserted that there was evidence the fibroid was obstructing the esophageal.

The defendants had maintained they were not negligent in the circumstance. It was promised that the fibroid wasn’t actually protruding to the uterine cavity but was instead sitting on the outside. As such, it had been said that the fibroid didn’t have a considerable impact on the plaintiff’s IVF procedures along with the choice to remove the fibroid was marginal. Given the position of the fibroid, Dr Waterstone argued the laparotomy process was appropriate.

On the other hand, the prosecution contended that this defence was undercut by a letter which was delivered by Dr Waterstone into the plaintiff’s GP. The letter stated that the fibroid was little but”very deep and protruding to the uterine cavity a very small opening, necessarily, was made in the endometrium”.

In considering the situation, Mr Justice Cross stated he had been”disabled by the dearth of proof” regarding the plaintiff’s scans. However, he noted that Dr Waterstone’s evidence was that the fibroid did not seep into the uterine cavity or distort the endometrium. The evidence stood in contrast to the contents of this letter to the GP.

It had been contended by the defendants that this letter was a”terrible mistake”, resulting from Dr Waterstone not paying satisfactory care when he was dictating the letter.

Having regard to his evaluation of the evidence, the court decided that Dr Waterstone was honest and genuine when he claimed that the letter to the GP was confused. The court wasn’t prepared to make a finding of willful deceit, though it had been noted there were”great difficulties” with an experienced practitioner making such mistakes.

What’s more, 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 look of encroachment was caused by the angle of their slides that were available. There was also a suggestion that the plaintiff specialists’ perspectives were coloured by the contents of Dr Waterstone’s letter. As such, the court was satisfied that, based on the expert evidence, the fibroid couldn’t have been eliminated using hysteroscopic myomectomy.

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

But, Mr Justice Cross held that Dr Waterstone considerably contributed to the situation running in the way it did due to the contents of the letter into the plaintiff’s GP. What’s more, the court was critical of Dr Waterstone’ failure to provide any explanation for those mistakes in the letter before giving evidence in the case. The court stated that”had he clearly set out his explanation for the correspondence and how the operation note was interpreted notwithstanding that correspondence, these event could have been avoided. In this aspect, the behavior of the suspect was to some substantial extent in charge of the bringing of the circumstance.”