Clinical Negligence Partner, Paul Fouad, settled a complex wrongful birth claim for £2.95 million. The settlement was agreed a month before trial, despite liability being denied throughout.

Paul represented the Claimant, who gave birth to her child in 2015. At birth, it became clear that the child had spina bifida, despite this not being picked up on the Claimant’s scans. The Claimant underwent scans at both an NHS hospital and a private hospital. However, both Defendants failed to either identify any abnormalities or request further scanning. The Claimant’s argument was that, had this been identified, she would have made the difficult decision to opt for a termination.

The Impact on the Claimant’s Life

The Claimant’s child is in need of 24/7 care, meaning that the Claimant has been required to resign from her job and dedicate her life to caring for her child. Wrongful birth claims raise moral dilemmas, which Claimants often struggle with. It can be difficult for a parent to admit that, had they been given the option, they would have chosen to terminate the pregnancy. It is important that all care provided by clinicians is consistent and in line with medical guidelines. For example, the NHS guidelines state that a termination after 24 weeks may be carried out if “the child would be born with a severe disability” and the NICE guidelines refer to the need to prevent “grave permanent injury” to the mother’s physical or mental health.

The Medical and Legal Basis of the Claim

Caring for a child with a severe disability can significantly impact a parent’s physical and mental health. The Claimant was entitled to have been offered a termination based on the circumstances of the case.

To support the case, Paul obtained an expert report from a fetal medicine expert. It was stated in their report that 80% of pregnancies, in which a neural tube defect (of which spina bifida is one of the most common) is diagnosed, are terminated. Statistics such as this demonstrate that freedom of choice is commonly utilised in the UK and the need for thorough investigations to be carried out before deciding whether to proceed with a pregnancy or not. This is particularly important when it has the potential to lead to such a significant impact on the mum’s life.

Wrongful birth claims are relevant for children born with varying disabilities,  not just spina bifida. This may include, Down’s syndrome, cystic fibrosis, limb defects and heart defects.

Wrongful birth claims come with additional complexities that are not found in birth injury claims (in which the child is the Claimant). There are certain losses that Claimants are unable to claim for in wrongful birth claims, such as the general costs of bringing up the child. The compensation claimed is instead the additional costs of caring for a child with the specific condition or disability. For example, home adaptations, specialist equipment and therapies.

Additional Complexity: Two Defendants

This claim also came with the additional complexity in that there were two Defendants being pursued.

Despite the various challenges Taylor Emmet were able to secure the Claimant a large settlement figure which will assist her with the significant costs associated with caring for her child.

Please see below for other wrongful birth claims which have been in the news:

Mother wins £9m payout for ‘wrongful birth’ after GP error | Daily Mail Online
Mother sues NHS for millions of pounds over the ‘wrongful birth’ of her daughter | Daily Mail Online
Devastated couple sue NHS hospital for ‘wrongful birth’ of disabled daughter they would have aborted after antenatal scans failed to spot abnormality | Daily Mail Online