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‘Wrongful Birth’ Professional Negligence Claim Fails

Parents who claimed that they would have elected to abort their baby had they been warned that she would be born severely disabled – but who were advised by lawyers that their ‘wrongful birth’ claim against the NHS had little prospect of success – have failed in a £500,000 professional negligence claim.

The couple’s baby daughter was born suffering from a rare chromosomal disorder and endured a range of grave disabilities until her death at the age of just 11. Her parents subsequently launched proceedings against an NHS Trust on the basis that there had been a negligent failure to warn them of ominous test results during the pregnancy and that, had they been kept fully informed, they would have opted for a termination.

Following a meeting between experts, however, the couple withdrew their claim after being advised by their legal team that their case was unlikely to succeed. They sued the law firm and barrister who gave that advice, claiming that their case against the NHS Trust had in fact been a strong one and that they had been deprived of the opportunity to win substantial compensation.

However, in dismissing the claim and exonerating the couple’s former legal advisers, the High Court found that experts at the meeting had been fully briefed and had produced reports on the basis of comprehensive medical notes. The lawyers’ conduct of the meeting had been up to ‘an appropriate and professional standard’ and their advice to the couple had been in line with the experts’ opinions.

The Court noted that, even had a breach of duty been established, it would have dismissed the couple’s claim on the basis that it had been lodged outside the applicable six-year limitation period. The father’s claim was also bound to fail as he was not a client of either the law firm or the barrister.