“Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent up upon the birth of a healthy child, which all of us regard as a valuable and good thing”

McFarlane v Tayside Health Board per Lord Steyn

On 18 October 2014 the Parliamentary Under-Secretary at the Department of Health, Dr Dan Poulter MP, provided written answers to the questions asked by Mrs Mary Glindon (North Tyneside, Lab) on 9 September:

“To ask the Secretary of State for Health, how much the NHS has paid out for wrongful birth claims in each year between 2003 and 2013; how many successful claims for wrongful birth were made in each year between 2008 and 2012”. [208750]

and

“To ask the Secretary of State for Health, what the neonatal conditions were that accounted for successful wrongful birth claims between 2003 and 2013”. [208751]

Dr Poulter’s answers, here and here, formed the basis of an article “Compensation culture gone mad. Cash-strapped NHS shells out millions for ‘unwanted’ healthy babies” by Philippa Taylor, Head of Public Policy at the Christian Medical Fellowship, (CMF) in The Conservative Woman. This was repeated in MercatorNet as “The UK’s absurd ‘wrongful births’“, and subsequently circulated by Anglican Mainstream, True Anglican Blog and others.

The original article was helpful in providing links to the underlying data and built upon the author’s earlier post What is the true cost of ‘wrongful births’? which focused on claims relating to children born with a disability. It also cited an article in the Mirror claiming that the NHS had paid £54M in pay-outs for not warning parents of disabled babies about abnormalities at early stage, and the October 2012 report of the NHS Litigation Authority Ten Years of Maternity Claims.

An element missing from these considerations has been the case law associated with such payments and it is pertinent, therefore, to summarize the current legal position and re-examine the statistics provided by the Minister from this point of view.

Legal Issues

In her review of Waller v James [2013] NSWSC 497 Rosalind English of UKHRB observes:

“So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate. Since 1999 (MacFarlane v Tayside Health Board [1999] UKHL 50 such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust [2001] EWCA Civ 530)”.

An overview of the practical application of the legislation is provided by Leigh Day, one of the law firms involved in Failed sterilisation (wrongful birth). Its website provides the following information:

“Wrongful birth is the term the courts use to describe a claim that arises out of the birth of a child who would not have been born without negligent treatment, usually to the child’s parents. The claim belongs to the parents, usually primarily to the mother because she is more likely to be the person who received treatment.

Wrongful birth claims fall into two main categories. The first is failed sterilisation or failed vasectomy. The second arises where parents have not been warned that a child will be born with a specific disability, and if they had been warned would have terminated the pregnancy. It may include such things as wrong advice about the risks of a child being born with sickle cell disease, or simply forgetting to offer screening for Down’s Syndrome to a woman at risk.

You may have a claim in clinical negligence if your sterilisation has not been successful and has resulted in an unwanted pregnancy. Your potential claim is for what is termed a ‘wrongful birth’ in the sense that the failed sterilisation will have resulted in the birth of a child that would otherwise have not been conceived.

You will be compensated for the physical and emotional pain, incapacity and distress of an unwanted pregnancy and labour and possible additional re-sterilisation procedure. This is usually at about £5,000, although it could be more if the pregnancy or labour was unusually complicated or you experienced post-natal depression. You will also be entitled to compensation if you decide to proceed with a termination. You will be entitled to claim for any financial losses, including loss of earnings, resulting from the unwanted pregnancy. However, following the decisions in the House of Lords in McFarlane v Tayside Health Board and Rees v Darlington Memorial Hospital [2003] UKHL 52 you will not be compensated for the cost of bringing up any child born as a result of the failed sterilisation, unless that child is disabled. You may be entitled to a payment of about £15,000 in recognition of the fact that you have lost the right to limit the size of your family. We will need to know about your individual situation before we can advise what damages you may be able to recover.

You and your partner may have a claim in clinical negligence if your vasectomy has not been successful and has resulted in an unwanted pregnancy. If liability can be established you and your partner’s potential claim will be similar to those claims arising from failed sterilisations.”

Other legal firms operating in this area offer similar advice here, here and elsewhere, and recent guidance on guidance on pursuing clinical negligence claims for ‘wrongful conception’ and ‘wrongful birth’ was published in the September issue of the Personal Injury Law Journal.

Statistics

In his Written Answer, the Minister included the following tables[1]:

• a breakdown of the number of successful claims and the associated costs (damages awarded, defence and claimant costs) for each year from 2003-04 to 2013-14, for the 164 successful claims, of which 60 cases remain open pending final resolution;
• a breakdown of the number of unsuccessful claims and the associated defence costs; and
• a breakdown of the number of claims for each neonatal condition/cause of claim for the 104 closed claims during this period.

Since the years in which claims were made for these neonatal conditions are not specified, it is not possible:

• to distinguish between the payments made in cases of failed sterilization or vasectomy and those resulting in a disabled child; or
• to indicate any time-related trend for any specific conditions.

There are further significant uncertainties in view of the incomplete nature of the data which do not include the final costs relating to a substantial percentage of these claims.

Over the period 2003 to 2014, the number of successful claims each year has ranged from 10 to 20, with an overall average of 14.91 per year. No obvious trend is apparent. Between 3 and 11 unsuccessful claims were made over this period, with an the overall average per year of 7.55.

With regard to the costs of successful claims, however, no firm conclusions may be drawn since the data presented were incomplete in relation to the final costs of a significant percentage of these: the information provided by the Minister relates to how much the NHS has paid out to date for the 164 claims listed, 60 of which remain open (i.e. the NHS LA has not resolved all aspects of the claim, e.g. they have agreed damages but not yet paid them or they have paid some or all of the damages but not yet agreed claimants costs).

However, apart from the periods 2012-13 and 2013-14, the annual average cost per claim is in the range £299,258 (2006-07) to £1,370,785 (2003-04): sums that are substantially higher than those quoted by Leigh Day and others for failed sterilisation or failed vasectomy.

Comment

From the above considerations, it is clear that in the case of “healthy babies”: the focus is medical negligence and its impact on the person involved; following MacFarlane, courts will not award costs in relation to bringing up the child; and where payment are made, these are relatively small when compared with payments for relating to costs awarded in respect of bringing up a disabled child. Without further information, however, it is not possible to draw any conclusions from the cost data provided recently in the Minister’s Written Answer.

Future Developments

The MacFarlane judgement has been reviewed by a number of commentators, Maclean, Priaulx, Rosu and others; and in her post IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court, Rosalind English comments:

 “Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform?”

She notes that in Rees Lord Scott suggested that damages should be available only where the avoidance of a child with a disability is the very reason why the parents sought treatment, and not here medical treatment (e.g. sterilization) is sought merely to avoid having to use contraception.

“So an intriguing extension to this line of thought [on Rees v Darlington Memorial Hospital NHS Trust, Farraj & Anor v King’s Healthcare Trust & Ors [2009] EWCA Civ 1203, and Waller v James] is the hospital’s liability where parents are undergoing IVF. Not only is there an implied requirement in such circumstances by the parents to avoid the risk of genetic disease, but the opportunity to take steps against hereditary disorders are much greater where there are a number of embryos to choose from. And as the availability and accuracy of genetic tests continue to improve, will it mean that hospitals providing routine antenatal care for mothers will come under a duty of care to provide information and advice that is breached in the case of hereditary disorders breaking through? It may be that the whole contentious landscape of wrongful birth – and even wrongful life – claims may have to be revisited.”

__________________________

[1] The Written Answer to each question included the same two sets of tabulated information.

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Suggested citation: David Pocklington: ‘Wrongful births”, statistics and the law’ (Law & Religion UK 18 November 2014) (available at http://wp.me/p2e0q6-44t)