Clinical negligence: another look at wrongful birth claims

The High Court in England has recently revisited the question of wrongful birth claims, and provides a helpful reminder about what can and cannot be claimed for.

What is a wrongful birth claim?

My colleague, Darren Deery, has previously written about misinterpretation of fetal scans during pregnancy and what can (and cannot) be claimed for.

Cases of this nature are known as “wrongful birth claims”. They areclaims for the additional costs of bringing up a disabled child where it is argued that the child would not have been born were it not for the defender’s negligence. Situations where such a claim might arise include unplanned pregnancies resulting from a failed sterilisation or vasectomy, or a failure to detect a serious health condition before birth.

These cases are far from straightforward and there are a number of legal hurdles to overcome. In the latter example, the parents would have to demonstrate: (i) that there was a failure to warn the parents that the child would be (or would likely be) born with a serious health condition; and (ii) that the mother would have terminated the pregnancy had she been properly advised or treated.

When unborn babies are found to have serious health conditions before birth, parents are undoubtedly faced with incredibly difficult choices – but if parents are denied the opportunity to make an informed choice as to whether to continue with the pregnancy, the consequences can be huge for both the child and the family. Compensation can help provide financial security and the best possible chance in life for the child in question.

What can be claimed for?

The law is clear that that a claim cannot be brought by the parents for the cost of bringing up a healthy child, even if there was negligence.

If, on the other hand, the child is born with a serious disability then the parents may have a claim for compensation to help meet the child’s additional needs and replace income lost by caring for the child.

The mother may also be able to claim damages for pain and suffering associated with an unwanted pregnancy and labour.

What if the child is born with two disabilities – one of which is linked to the negligence, and one of which is totally unrelated? Can the costs associated with both disabilities be recovered?

This question was considered by the court in the recent case of Meadows v Khan [2017] EWHC 2990 (QB). Ms Meadows brought a claim on behalf of her son, Adejuwon, who has both haemophilia and autism.

In January 2006, Ms Meadow’s nephew was born and diagnosed with haemophilia. As a result, Ms Meadows consulted her GP to find out whether she was a carrier of the haemophilia gene. Blood tests were carried out but these blood tests could only actually confirm whether or not Ms Meadows herself had haemophilia - the tests could not confirm whether or not she was a carrier of the gene. What was, in fact required, was referral to a haematologist for genetic testing.

Ms Meadows was told by her GP that the blood results were normal and so she was led to believe there was no risk that any of her children would have haemophilia. She gave birth to her son around five years later and he was diagnosed with haemophilia shortly after birth. Had it been carried out in 2006, genetic testing would have revealed Ms Meadows to be a carrier. She would have been able to find out whether any foetus had haemophilia and would have chosen to terminate her pregnancy, such that Adejuwon would not have been born.

Adejuwon was later diagnosed with unrelated autism which makes management of his haemophilia more difficult because he does not understand why his treatment is necessary and does not tell his parents when he has a bleed. He is unlikely to be able to live independently in future.

The defenders agreed that they were liable to pay the costs associated with the haemophilia but they argued that the costs associated with autism were not recoverable. The failure to properly advise Ms Meadows about the risk of haemophilia was not linked to autism, an entirely separate and distinct disability. The defenders tried to argue that the additional costs associated with autism fell outwith the scope of the duty owed to Ms Meadows, but the court disagreed.

The court held that the defender’s duty was to provide Ms Meadows with the information she needed to allow her to terminate any pregnancy affected by haemophilia. Although the doctor didn’t assume any particular responsibility relating to autism (and the autism was simply “bad luck”), that didn’t matter. The pregnancy in question was affected by haemophilia and would have been terminated if Ms Meadows had known. The scope of the doctor’s duty “extended to preventing the birth of Adejuwon and all the consequences that brought.” If that duty had not been breached, Adejuwon would not have been born.

If you think you have a wrongful birth claim

Wrongful birth claims are legally very complex and we would strongly recommend that you instruct solicitors with expertise in this area. If you think you might have a claim for wrongful birth, please do not hesitate get in touch with a member of our clinical negligence team who would be happy to discuss. The key points to remember are as follows:

Compensation can only be recovered for the additional costs associated with raising a child with a disability (rather than the costs associated with raising a healthy child).

Claims can be made by the parents and not by the child. This distinction is important because it means there is only three years from the date of birth (or from when the parents ought reasonably to have been aware of the negligence) to raise a court action for compensation.

In order to proceed with such a claim, parents must be able to demonstrate: (i) that there was negligence on the part of the medical staff; and (ii) “but for” that negligence they either would not have become pregnant (in the case of a failed sterilisation) or they would have terminated the pregnancy (in the case of misinterpretation of fetal scans or failure to carry out testing for serious health conditions). This is a question that parents no doubt feel uncomfortable answering, particularly when they are by now looking after a child whom they love and care for, but it’s helpful to return to the judgment of the court in Meadows v Khan when considering matters as Mrs Justice Yip explains the situation in a clear and helpful way:  

“I recognise that this case involves highly emotive matters. It cannot be easy for any mother to contend bluntly that her child should not have been born. Although I did not hear evidence from Ms Meadows, her love for her son shone through from her written statements. She had specifically sought to avoid bringing a child with haemophilia into the world, knowing the suffering that the condition causes. The fact that she says clearly that she would have terminated her pregnancy had she known the baby would have haemophilia is not the same at all as saying that Adejuwon is now an unwanted child. On the contrary, it appears that he is much loved and well cared for. The burden of caring for him though is much greater than the burden of caring for a 'normal', healthy child and extends far beyond the purely financial cost. Although this is a claim for her loss, I do not doubt that the claimant's primary motive in bringing this claim is to provide a better life for her son”