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Wrongful Birth cases

This is another clinical negligence case type where Temple has considerable experience and many cases are currently insured with us.

These are relatively high value cases that require significant cover to establish the additional expenditure required in raising a disabled child. We understand that whilst such a cases fall within the Clinical Negligence genre there are import differences.

We have expertise in assisting clinical negligence lawyers with these sensitive cases. We say sensitive because the issue in most cases will be that the parent or parents now have a child which was unplanned and feel that they should be compensated. Not all such cases are likely to succeed and we can look at this in a bit more detail below.

It is not always clear at inception whether breach will attach and it is expected that the solicitor will have obtained full copies of the hospital records to try and assess prospects before a referral is requested.

Whether or not liability is likely to attach will involve reviewing the case alongside what are viewed as arguably the three key authorities:

McFarlane: The husband underwent a vasectomy. Unfortunately the procedure was unsuccessful and the couple became parents to a healthy child. The House of Lords held that, although damages for the pain and suffering of pregnancy and childbirth could be awarded, the costs of rearing the child were irrecoverable.

Apply the now familiar three-stage test propounded by Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605;

“Decide that reference to principles of distributive justice might provide a more just solution to the problem than an approach founded solely on principles of corrective justice.: [26]” 

“The important thing to note is that there is no longer a single “correct” test”.

Parkinson: This case differs somewhat from McFarlane. The child in this case had been conceived and born due to negligent sterilisation. The child was not healthy as in McFarlane and instead was born with disabilities (such disabilities were not connected to the negligence). The Court of Appeal reiterated that the costs of rearing a healthy child must fail as in McFarlane but here allowed recovery of the extra costs associated with rearing a child with disabilities.

Rees: In this House of Lords case the Claimant was a disabled woman who had elected to have a sterilisation operation because of the difficulties her disability would cause her in raising children. The sterilisation was performed negligently and resulted in the birth of a healthy child. The House of Lords determined that Rees was more in line with McFarlane than Parkinson and so the costs of rearing the child were irrecoverable. There was an award of a lump sum ‘conventional award’ permitted to reflect the legal wrong suffered by the Claimant. As suggested by the description this is an award which may not reflect actual loss but one which it has been thought appropriate to make.

Key Points

  • In cases of wrongful birth, parents are not able to recover the costs of upbringing and caring for a normal, healthy child from the health authority or doctor, since such claims do not satisfy the requirements of being fair, just and reasonable.
  • However, parents might be entitled to an award of compensation for the extra expenses associated with bringing up a child with a significant disability, since the birth of a child with congenital abnormalities was a foreseeable consequence of the surgeon’s negligence
  • Other cases have been reported since although nothing which materially affects the principles established above.

Temple ATE insurance – peace of mind for you and you client

If breach can be established as far as possible and the solicitor is satisfied that the parent or parents would have chosen not to go through with the birth in their particular circumstances then the instruction of experts to establish liability then follows. The cover we offer means you can be sure of our support, even though settlement may not be approved for many years.

The ATE insurance cover Temple offer can also include integrated disbursement funding to claimants for court fees, expert reports and mediator fees. This helps ‘unlock’ the claim and puts a claimant in the position of being able to pursue their claim.

Don’t just take our word for it

Find out what leading clinical negligence litigators say about our products and service – click here to find out their views.

Your questions answered

What if I need more cover to investigate the case?

Our insurance cover provides a combined limit of indemnity of £300,000 as standard. If additional cover is required, this can be provided through making a ‘top up’ request to us.

When should I obtain ATE insurance?

This should be as soon as you are able to assess the prospects of success – normally following a full review of the medical records. However, due to the complex nature of these cases, an expert’s opinion may be needed if there are any uncertainties.

I’ve incurred several disbursements on my client’s birth injury case, such as expert evidence prior to obtaining insurance, will these be covered under the policy?

Yes, disbursements incurred following the date of the CFA will be covered under the Temple ATE insurance policy.

Contact our experts

If you would like more information on ATE insurance and disbursement funding for your clinical negligence/wrongful birth claim or you have any other legal expenses insurance queries, please email or call me on 01483 514808. I look forward to hearing from you.