Landmark judgement gives children the right to claim for clinical negligence for advice given pre-conception

  • Historic judgement gives children injured by negligent advice affecting a parent’s ability to have a healthy child the right to bring their own claim
  • Judge rules that 19-year-old with dreams of competing in the Paralympic Games should be able to bring her own claims for negligent advice

In a significant moment for clinical negligence law, a judge has ruled that a healthcare professional could be liable for negligent pre-conception advice which results in the birth of a child that would not otherwise have been born. The decision paves the way for any child injured as a result of advice affecting a parent’s ability to have a healthy child to bring their own claim for compensation.

The momentous decision centred around whether Evie Toombes, a nineteen-year-old Para Rider and Hidden Disability Ambassador suffering from spina bifida, should be able to bring her own claims for compensation for the negligent advice which led to her disability.

While a claim brought by the parents in a situation like this would be limited to the additional cost of bringing up a disabled child, a claim brought by the affected child, such as Evie, would entitle them to damages for pain, suffering and loss of amenity, past and future costs limited only by their life expectancy rather than that of her parents and their financial ability to support her.

The lawyers for both parties framed the legal question to be decided as a preliminary issue before the case could proceed. The answer given by Mrs Justice Lambert was that a wrongful act leading to an occurrence resulting in the birth of a child with a disability is all that the law requires for a valid claim to be put forward.

Subject to any appeal, the case will now proceed to a trial with the fact now established that Evie has a right to bring that claim herself.

This feels like a momentous step, not only for myself – but for any other person who finds themselves in my position with a challenging life ahead of them. I hope this landmark case also helps to bring attention to the cause, and in turn provide awareness and prevent further scenarios like this that could happen to families.

Evie Toombes

Evie has endured immense challenges throughout her life. Knowing that these health issues may well have been preventable with the correct advice (which I sought pre-conception) is extremely tough. I am also proud that Evie has chosen to use her experiences to assist others. Evie requires a great amount of support and as a family we are dedicated to helping her achieve her goals.

Caroline Toombes, Evie’s mother

This important moment will pave the way for justice for many people like Evie, whose life has been negatively affected by negligent advice which has caused such hardship to her and her family.
I welcome the decision of Mrs Justice Lambert, and I sincerely hope that today’s judgement will spark a change in how we approach cases like this. Thanks to the bravery and determination of Evie and her family, individuals affected by advice given before they were conceived will now be empowered to seek justice for themselves.

Tim Spring, who specialises in clinical negligence claims at Moore Barlow