Although the concept of wrongful birth can be difficult to understand, it is a common type of clinical negligence claim.
Wrongful birth claims arise when negligent treatment or advice means that a child would not otherwise have been conceived. Claims may result from a failed sterilisation or vasectomy, or a failure to diagnose and inform potential parents of a specific disability during pregnancy. For example, if the 20-week anomaly scan should have picked up a serious or life-threatening condition but failed to do so, and if, assuming the condition had been picked up and communicated to the mother, a termination would have taken place, this can lead to a wrongful birth claim if the baby is born with serious or life-threatening health problems.
Wrongful birth claims have their own rules regarding what can and cannot be claimed for, and they also have their own particular emotional impact. A successful claim can provide a family with vital support and equipment to allow them to look after a disabled child.
It is important to note that English law is clear that if the baby is born free of health conditions, then no claim for the cost of bringing up that healthy child can be made. A claim will also fail if the mother should have been warned of a serious health risk to the baby and would have terminated the pregnancy if the correct information had been given, but she is not, and the child suffers an unconnected birth-related health issue. In such situations, a claim for the extra costs involved in bringing up the child cannot succeed.
For example, in the Supreme Court case of Khan v Meadows, Mr Khan, Ms Meadows’ GP, told her that she was not a haemophilia carrier, but she went on to have a son with the disease. Ms Meadows’ son was also diagnosed with autism which made treatment of his haemophilia more difficult. At the original court hearing Ms Meadows was awarded compensation to cover both of her son’s conditions, but this was later overturned by the Court of Appeal and the Supreme Court, who agreed that Mr Khan should not be liable for the costs relating to the child’s autism.
What can be claimed?
Although the baby has suffered the injury, it is the mother’s claim. There is usually a claim for the pain and suffering caused to the mother during the birth, even if the child is healthy, and a small claim because the parents have lost control over the size of the family. However, the main element of the claim is the costs of the extra care and assistance involved in bringing up a severely injured child, over and above the costs of bringing up a healthy child. This might include treatment costs, therapy costs, and the costs of special equipment and home adaptations. A wide range of experts may be involved and claims can be large.
Simon Towler, a clinical negligence specialist in Shoosmiths’ serious injury team, acted for two claimants in wrongful birth cases and successfully recovered compensation in each. Both involved a failure to carry out the 20-week anomaly scan in a reasonable manner.
In one case, very serious cardiac defects should have been picked up. The baby became suddenly very ill at eight days old and had to be rushed to hospital. She underwent multiple heart operations and may need a transplant. In the other case, there was a failure to diagnose a very serious and life-limiting chromosomal abnormality called Trisomy 13. About half of babies born with this condition do not survive their first year, but with the dedicated care of her family, together with the support and equipment the claim has provided, the child is now nearly eight years old and enjoys a wide range of sensory experiences, especially water.
The basis of these claims is that with reasonable treatment, the child would not have been born. A very difficult statement for parents to make, yet by making a successful claim the child’s quality of life can be immeasurably improved.
If you have experienced a failed sterilisation or vasectomy, or there was a failure to diagnose a serious birth defect during pregnancy, you may have a claim for wrongful birth. Contact our medical negligence experts to discuss your situation.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
