Wrongful births – the sensitive and often distressing cases that enter the legal arena.

Wilkin Chapman senior solicitor and specialist in clinical negligence, Jonathan Baker, looks at the sensitive and often extremely distressing cases of wrongful births, in the wake of a high-profile legal case.

There are no true winners when it comes to often heart-breaking legal cases of wrongful births.

In trying to reach a decision, courts will centre upon the tests that should have been offered to the family and whether they would have agreed to them; whether they would have revealed anything, and what, if anything, the family would have been done with that information; in the critical months and weeks before the children are born. It’s often very difficult, especially when emotions are running at their highest and you are looking back to a time, many months before.

We read this week of a case involving a mother who is suing the NHS for more than £200,000 after medics allegedly failed to perform tests that would have detected Down’s syndrome before her baby’s birth. The mother, states the report, is adamant she asked for the checks to be performed and while she is committed to her child, she told the High Court she would have terminated her pregnancy if she had prior knowledge.

This is far from an unusual case – figures from 2017 reveal how NHS Resolution paid £70million to parents in ‘wrongful birth’ cases in five years. That included £40million of damages in 16 cases where parents claimed that antenatal screening failed to warn them of the risk that their baby would be born with a disability – which equates to about £2.5million per family.

A crucial point here, and in other cases that have hit the headlines, is the reliability of evidence, even if it is written down in clinical note form. In the case of the Down’s syndrome child, the mother says she requested the relevant investigations to detect any issues, telling the midwife this at her first appointment. The test was not, however, performed and this, say lawyers for the NHS, is because the mother declined them, only to ‘bitterly regret’ her decision after the birth.

Discrepancies between what the records say and what is later said in witness evidence is clearly significant and, while you may automatically assume that a court will see written notes as the more reliable, this is not necessarily the case. For example, in another recent clinical negligence case – this time involving an NHS Trust in North West Anglia, it was decided there was no general principle that the court ‘should prefer the reliability and veracity of clinical notes over witness statements and oral testimony…’.

If there isn’t a presumption that the records are more reliable in all circumstances, should the authorities look at how they can further enhance their procedures to ensure their evidence is conclusive – or will such cases always be open to question, given their sensitivity and circumstances?

For advice on any aspect of clinical negligence please contact Jonathan by email Jonathan.Baker@wilkinchapman.co.uk or call 01522 515966.