Nigel Spencer Ley secures substantial damages in a Wrongful Birth claim

Published: 06/03/2024 | News

EFG & HFG v. NHS Trusts

The Claimants’ son P was born in April 2017 suffering from a rare genetic disorder called Cornelia de Lang syndrome. He is now aged six and is very disabled:

  • he has no understanding of language and cannot speak
  • he is unable to sit unaided or to walk
  • his growth is restricted and he is microcephalic (i.e. very small head)
  • his swallow is unsafe and he is fed by gastrostomy

No significant improvement in his condition is anticipated. He will never gain capacity to manage his own affairs. He will never be capable of undertaking paid work. He will require full-time care throughout his life. His life expectancy is impaired.

P’s mother’s (the First Claimant) antenatal care was provided by two NHS Trusts (one a general hospital, the other a specialist centre). During her pregnancy she underwent regular monitoring and a number of investigations. At no stage was it ever suggested to her that P might be born very disabled. While it was not argued that either Trust should have diagnosed Cornelia de Lange syndrome prior to P’s birth, the Claimants’ case was that the combination of a number of unusual features, should have led the Trusts to warn her that it was likely that P would be born with either a serious genetic or chromosome disorder. The features relied upon were: a small head, low fetal weight compared to a sibling, a heart defect and a brain defect (visible on an MRI which was wrongly reported as normal). Had P been investigated further it would also have been discovered that he was missing two digits on one of his hands. In the circumstances the Claimants’ case was she should have been offered a termination. Her evidence was that had she been offered a termination she would have elected to undergo one.

Following P’s birth the Claimants made formal complaints to both Trusts which were rejected.

P’s mother gave up her job to provide full-time care to him. P’s father had to change jobs so that he was no longer away from home.

Proceedings were issued against both Trusts. This was not a personal injury claim brought by P in respect of his disability, but a “wrongful birth” claim, brought by his parents seeking damages in respect of their financial losses in having responsibility for a very disabled child.

Initially only the first Trust was served. It was thought that the case was sufficiently strong, that liability would be admitted by this Trust. In fact every aspect of the claim was denied. The Second Trust was then served. It also denied the entire claim. As well as denying every allegation of breach, it was disputed that the First Claimant would have elected for a termination had she been given the advice contended for. It was also asserted that P’s father had no claim in law.

Following the preparation of joint statements by the liability experts, the Defendants agreed to attend a settlement meeting to discuss liability. At a meeting in March 2022 the issue of liability was settled on the basis of a 10% deduction for litigation risk. Judgment was entered on that basis.

In May 2023 the Claimants served a Schedule of Loss, seeking total damages of £35million (after the deduction of 10%), along with reports from eight medical and quantum experts. The Schedule was based on life expectancy to age 71, and an assumption that the claim for care of P, would continue after the deaths of the Claimants. The Claimants also expressed a preference for a periodical payments order. However as this was not a personal injury case, such an order could only be made with the consent of the Defendants.

The Defendants responded with a Counter Schedule raising a number of legal objections to the claim:

  • It was asserted that the case of Parkinson v. St. James & Seacroft University Hospital NHS Trust [2002] QB 266 was wrongly decided, and that no damages whatsoever were recoverable. The House of Lords in Macfarlane v. Tayside Health Board [2000] 2 AC 59 ruled that as a matter of principle no claim for damages could be made in respect of a healthy child, born as a result of negligent medical care or advice. In Parkinson the Court of Appeal ruled that a claim could be brought for the additional costs of bringing up a seriously disabled child. This has been the law now for over 20 years. The Defendants indicated that they would challenge this decision all the way to the Supreme Court.
  • It was asserted that damages should be limited to the additional costs of care, over and above that available from state support. The decision in Peters v. East Midlands Strategic Health Authority [2010] QB 48 (which held that a Claimant had the right to elect between privately funded and state care) was not mentioned in the Counter Schedule. However by implication it was the Defendants’ case that this principle did not apply to wrongful birth cases.
  • It was asserted that the Claimants’ responsibility for P would come to an end when he was 18, and thereafter he should rely entirely on state support.

Life expectancy was also put in issue. On the Defendants’ case P would only live to age 25.

The Defendants valuation (if damages were recoverable at all) was £3.8million (after the deduction of 10%). In addition to very substantial claims for care and case management, the Claimants also pursued large claims for both Claimants’ loss of earnings, adapted accommodation, physiotherapy, equipment, transport and holidays. All of these were disputed.

At a settlement meeting in February 2024 a compromise was reached.

The Defendants were prepared to agree to a periodical payments order which potentially lasted beyond the Claimants’ lifetimes, provided it did not go beyond the First Claimant’s current notional life expectancy. This was to a date in 2072. P would be 55 in 2072, if he lived that long.

The Defendants were also prepared to pay the cost of a private care regime, provided the Claimants gave a Peters undertaking not to seek state funding without permission from the Court and notice to the NHS.

The claim was settled on the basis of a lump sum of £3.575million and periodical payments of £285,000pa rising to £345,000pa from P’s 19th birthday (all figures take account of the 10% deduction).

On a lump sum basis, depending on how long P lives (but ignoring indexation of the periodical payments), the value of the settlement was between £8.8m and £19.8m.

Nigel Spencer Ley is ranked as a Leading Junior in the field of clinical negligence in both Chambers UK and Legal 500. He has a particular specialism in claims involving wrongful birth, Cauda Equina, spinal injury and missed or delayed diagnosis of cancer. For more information, please contact our Clerking Team.