Wrongful birth claim successfully settled

Nicholas Leahy
Pregnant woman holding blanket,

Table of Contents

Background

Our client, J, fell pregnant in October 2015 and took the difficult decision to undergo a termination. She booked an appointment at BPAS in Portsmouth where she consented to a termination of pregnancy on 14 October 2015. She said that she would like a general anaesthetic and a coil fitted as she could not risk getting pregnant again.

J underwent the termination on 24 October 2015 at BPAS and apparently, she was told by a Clinical Practitioner that Nexplanon was the best form of contraception for her. She was told that this could be inserted after the termination. At the time she advised the treating clinician and nursing staff at the clinic that she suffered from epilepsy and that she was taking Carbamazepine (200mg morne and 400mg nocte) and had done for many years previously. Carbamazepine is a liver enzyme-inducing drug, which increases the metabolism of female sex hormones, eliminating the drug from the body faster and so lowering blood levels. When this increased metabolism happens to a woman using a hormonal contraceptive, the contraceptive can become less effective and pregnancy can result.

Despite this, J was still advised that Nexplanon was the most appropriate form of contraception for her. She did not know any different and accepted the information that was given to her by the medical professional. J had clearly explained that she did not want to get pregnant again.

J, therefore, had the Nexplanon device inserted in her left arm on 24 October 2015. She informed the nurse prior to this procedure that she had taken carbamazepine at 06:00 that same morning and this was evident from her medical notes.

Everything seemed to go well for her initially and the Nexplanon implant did not bother her at all. She did not feel unwell or suffer any adverse effects from it and she carried on with her life as normal.

However, in early December 2017, 26 months after the insertion of the Nexplanon device, J fell pregnant. After much consideration J decided to continue with her pregnancy as she could not face another termination.

J attended all antenatal appointments at the hospital and at her GP Surgery. She was unwell during the pregnancy. She was sick and suffered headaches. Her blood pressure was monitored and she was referred by her GP to hospital on 10 May 2018 as her BP was raised and she was also suffering from nausea.

J suffered pre-eclampsia and HELLP syndrome as she had in her previous pregnancy. Her baby’s placenta was small and her baby stopped growing. As a result, J had to have an emergency C-section, for which she had a spinal anaesthetic. J’s daughter was born at 27 weeks and she had to remain on the special care baby unit for several weeks following her birth. Following her discharge home from hospital, she remained dependent on supplemental oxygen until May 2021.

Civil Case

J instructed Nicholas Leahy to pursue a civil claim against the British Pregnancy Advisory Service for wrongful birth.

Supportive expert evidence was obtained from an expert in community sexual and reproductive health (on breach of duty and causation) and from a Consultant Respiratory Physician on Condition and Prognosis.

Our expert believed it was a breach of duty for BPAS to advise J to have a Nexplanon Implant when it was known that she was taking anti-epileptic medication. Further, our expert opinion is that there was a failure by the staff at BPAS to provide an explanation and a warning about this drug interaction and therefore to advise on an alternative method such as an intrauterine device.

J’s daughter was born prematurely at 27 weeks. In respect of condition and prognosis, expert evidence was obtained from a Consultant Respiratory Physician who diagnosed J’s daughter with significant chronic lung disease of prematurity (new bronchopulmonary dysplasia). He was of the view that J’s daughter was at increased risk of wheezing illnesses associated with viral illnesses in her early years which could stretch well into adolescence and adulthood.

Proceedings

A Letter of Claim was sent to BPAS on 6 September 2019. However, liability was denied in full in a Letter of Response which was served on 27 April 2020. The Defendant argued that J was appropriately counselled regarding available forms of contraception and that she gave her informed consent to the insertion of Nexplanon. The Defendant alleged that they had discussed the possible interaction between Carbamazepine and Nexplanon, although notably were unable to adduce any evidence of such a discussion.

Causation was also denied, with the Defendant arguing that no contraception is 100% effective and that it was open to J to proceed with a termination of pregnancy in December 2017 in any event. They also alleged J was aware that her baby could be born disabled since Carbamazepine itself could cause fetal abnormalities given that J had not taken folic acid from conception.

Following the denial of liability by BPAS, Counsel (Katarina Sydow of Outer Temple Chambers and latterly Tom Gibson of Outer Temple Chambers) was instructed to advise J on the prospects of success in her case.

During the civil case, it became evident that J’s daughter was making greater progress than was at first anticipated, despite remaining on supplemental oxygen at night until May 2021. Updated medical records were requested by BPAS and these were obtained in 2021.

Wrongful birth – The Law

The courts have significantly curtailed the damages which can be sought in birth injury claims, such that at present a claim can be made for:

  • a conventional award (currently £15,000) for loss of the Claimant’s freedom to limit the size of their family;
  • damages in respect of the personal injury suffered by the mother because of the pregnancy and labour, and incidental consequential losses and expenses; and
  • the additional costs of bringing up the child, consequent upon the disability.

J claimed the conventional award, a sum for the pain and suffering of her unwanted pregnancy, and additional costs related to bringing up her daughter, consequent upon her disability. This included the care which she was required to provide in respect of taking her daughter to numerous hospital appointments and in ensuring that her daughter was able to access supplemental oxygen support throughout each evening and night.

The parties were unable to agree in relation to liability. However, in early 2022, following a period of negotiation in which various offers of settlement were exchanged, a five-figure settlement was agreed with the Defendant.

Nicholas Leahy, J’s Solicitor in the Clinical Negligence Department at Osbornes said:

Wrongful birth cases are complex and interesting cases and this is an area of law that is still being regularly interpreted by the courts. This particular case caused significant additional distress to J but I am very pleased that we were eventually able to negotiate a successful outcome for her, which recognises the avoidable harm which was caused to her because of her unwanted pregnancy”.

If you would like to discuss your case with a medical negligence expert, please call Nicholas Leahy, or complete an online enquiry form.

 

Share this article

Contact

Contact us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you

    • [utm_campaign_i][/utm_campaign_i]
      [utm_source_i][/utm_source_i]
      [utm_medium_i][/utm_medium_i]
      [utm_term_i][/utm_term_i]
      [utm_content_i][/utm_content_i]
      [gclid_i][/gclid_i]

    • They have an excellent practice; they are top quality across the board.

      Chambers HNW 2022

    • "This is a really excellent personal injury team that can be regarded as one of the major players in the London claimant personal injury market."

      Legal 500 2023

    • This is a very high-end law firm, which treats its legal aid clients with the same seriousness and respect as its privately paying clients.

      Legal 500 2022

    • "Jess Moore is one to watch. She is junior but has an understanding of law, and client skills which suggest much more experience."

      Legal 500 2023

    • Osbornes have been a sound firm forever. They have phenomenal work and an excellent skill set.

      Chambers HNW 2022

    Insights from Nicholas LeahyVIEW ALL

    1. Confidential file
      11.4.2023

      Osbornes Instructed After Local Authority Data Breach

      Osbornes Law have recently negotiated a settlement on behalf of two clients who had their personal information inadvertently released to...

      Read more
    2. dentist
      23.1.2023

      Court avoided after settlement agreed in dental negligence...

      The Medical Negligence team have recently negotiated the settlement of a complex dental negligence case. Our client experienced a number...

      Read more
    3. Doctor With Stethoscope And Files
      13.1.2023

      Delayed cancer diagnosis results in five figure settlement

      The medical negligence team at Osbornes Law has recently settled a case involving a patient who passed away following a...

      Read more
    4. Neglijenta medicala spital din UK
      23.5.2022

      Justice for client who suffered serious birth injuries

      The Clinical Negligence team at Osbornes Law have recently negotiated the settlement of a case in which our client sustained...

      Read more
    5. Shot of a doctor showing a patient some information
      25.1.2022

      Serious Injury Following TVT Surgery

      Case Summary Our client, SG, attended her GP in December 2015 complaining of urinary symptoms including leaking when she laughed or...

      Read more
    6. Judge signing arrest warrant
      13.1.2022

      Court of Appeal Judgement on Secondary Victim Cases

      Judgment was today handed down by the Court of Appeal in the cases of Paul v Royal Wolverhampton NHS Foundation...

      Read more
    7. Pregnant woman holding blanket,
      12.1.2022

      Wrongful birth claim successfully settled

      Background Our client, J, fell pregnant in October 2015 and took the difficult decision to undergo a termination. She booked an...

      Read more
    8. blood test capsules
      29.10.2021

      Medical Negligence Case Study: Iron infusion cannula injury

      Nick Leahy, Solicitor in Osbornes Clinical Negligence team recovered damages for his client who suffered an extravasation injury following an...

      Read more
    9. medical negligence & the diagnosis Sepsis
      3.10.2021

      Sepsis – greater awareness can lead to better outcomes

      In September 2019, I attended the Brain Injury Group’s Sepsis training event in the City of London together with my...

      Read more
    10. maura irwin
      20.9.2021

      Osbornes represent family of NHS employee

      Osbornes Law is representing the family of a former NHS employee who suffered a painful death due to negligent hospital...

      Read more
    11. hospital bed
      20.7.2021

      Osbornes Successfully Settle Wrongful Birth Claim

      Nicholas Leahy, clinical negligence lawyer at Osbornes Law has recently negotiated the successful settlement of a wrongful birth case. Our...

      Read more
    12. 13.7.2021

      Family In Cardiac Negligence Claim Against NHS Trust

      Nick Leahy, medical negligence solicitor at Osbornes Law was instructed to pursue a cardiac compensation claim on behalf of the...

      Read more
    13. 9.7.2021

      Legal Support For Bereaved Families

      What legal support is available for bereaved families? The loss of a loved one is an extremely distressing time for...

      Read more
    14. white lilies
      1.7.2021

      Stillbirth following water birth at home

      Nicholas Leahy acted for a young woman who had a water birth at home and two midwives were allocated to...

      Read more
    15. 23.6.2021

      NHS Plans To Centralise Patient Medical Data Cause...

      Recent news coverage has highlighted the growing concern over plans by NHS Digital (which runs the NHS’s IT system)...

      Read more
    16. 9.6.2021

      NHS Plans To Centralise Patient Medical Data Cause...

      Recent news coverage has highlighted the growing concern over plans by NHS Digital (which runs the NHS’s IT system)...

      Read more
    17. hospital signs
      18.5.2021

      Failure to diagnose and treat Ogilvie’s syndrome

      Our client  suffered the consequences of a delayed diagnosis of Ogilvie’s syndrome following the birth of her daughter by...

      Read more
    18. 18.5.2021

      Failed to identify nerve damage caused during operation

      The Clinical Negligence team at Osbornes Law have this week successfully negotiated the settlement of a case in which our...

      Read more
    19. 26.4.2021

      Elderly man dies after fall from hospital bed

      A hospital trust has apologised after a vulnerable 84-year-old man died due to negligence after he fell out of bed...

      Read more
    20. doctor
      7.2.2020

      Why safety improvements for the placement of nasogastric...

      The Healthcare Safety Investigation Branch has this month launched an investigation looking at the implementation of safety improvements for the...

      Read more
    21. 17.1.2020

      Inquest held for former cab driver

      A former black cab driver starved himself to death in hospital after being allowed to refuse food and drink despite...

      Read more
    22. clouds
      13.11.2019

      Fatal Claim against West London NHS Trust

      I recently acted in a claim for a fatality against West London NHS Trust for damages under the Law Reform (...

      Read more
    23. 22.5.2019

      Bereavement Award

      A Historic Decision In the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916,...

      Read more
    24. 25.4.2019

      Brain injured woman awarded seven figure damages

      Our client, a 76 year old woman, tripped and fell on some stairs when she was on her way out of...

      Read more

    VIEW ALL