wrongful birth

This complex area of law changed greatly following the House of Lords decision of McFarlane -v- Tayside Health Authority. These types of cases may be categorised as:

• wrongful conception, such as failed sterilisation procedures, failed advice about sterilisation, inadequate sterilisation surgery or prescribed drug treatment interactions leading to loss of contraceptive protection; or
• wrongful birth such as failures to detect abnormalities in the baby, for example chromosomal abnormalities, viral infections or congenital defects, which would have led to the offer of termination of the pregnancy as a treatment option

This is a complex area of law, requiring special expertise, which we offer.  The cases involve serious emotional factors as to whether or not the treatment option to terminate a pregnancy would have been accepted.  There are many technical issues concerning valuation of these cases.

The position is now that the additional costs of upbringing can be claimed in the case of the birth of handicapped child but not for a healthy child.  For the birth of a healthy child, damages in these cases are now very limited and specialist guidance is needed.

These claims have to be brought by the mother.  This means that a three-year time limit applies from the date of negligence or date of knowledge of negligence.  Also because the child is not bringing the claim then legal funding is based on the parents’ and not on the child’s means.  In some cases Legal Aid may be available, however expert advice about funding, preparation, quantification and time limits should be taken.  We will be pleased to assist with this complex and difficult area of law.

For further information please contact Alison McClure in the Clinical Negligence team on 023 8085 7345 or email alison.mcclure@bllaw.co.uk.