Wrongful Birth Claims

Wrongful birth claims are brought by parents of a child who would not have been born but for alleged negligent treatment. Such claims generally relate either to a failed sterilisation or vasectomy or to a failure to diagnose a disability which had the parents known about, they would have elected to have a termination. Examples include genetic birth defects such as Cystic Fibrosis and Downs Syndrome or structural birth defects such as a hole in the heart, Cerebral Palsy or Spina Bifida.
 

What compensation can you claim in wrongful birth claims?

The law in this area has complexities. In relation to a claim for a failed sterilisation or vasectomy, if successful, an award of damages may be obtained to cover some financial losses and pain and distress from the unwanted pregnancy. As matters stand, the law is such that the general rule is that costs associated with bringing up the child are not recoverable unless the child is disabled. We can advise you fully about the potential losses that can be claimed and if you consider you may have a claim would urge you to seek advice.

Where a claim relates to a failure to identify and warn parents of a birth defect which would have led them to choose a termination, wrongful birth compensation may be claimed to meet the additional needs of the child. The amount of damages will vary depending on the level of disability and associated needs. These cases can be worth many millions of pounds where, for example, a child has significant requirements for care, therapies, equipment and adapted accommodation.

Your claim - why us?

Kingsley Napley’s Clinical Negligence solicitors have represented families on a number of wrongful birth claims. We understand the emotional burden of such legal action and are fully versed in the complex legal arguments needed to persuade the courts of the scale and depth of these claims and subsequent impact on families, both financially and personally. We work with the leading medical experts in this area including obstetricians and paediatric neurologists.

Our lawyers are recognised by the Legal 500 and Chambers directories as specialists in clinical negligence cases. Our team includes lawyers with specialist clinical negligence accreditations from Action against Medical Accidents (AvMA) and the Law Society.

If you or a family member is concerned about medical treatment in this area, please contact us to discuss how we can help.

Frequently Asked Questions

Is there a time limit for bringing a wrongful birth claim?

There are strict time limits for bringing a negligence claim for injury in England and Wales. This is called the limitation period. For adults, the usual rule is that a claim must be formally started at Court within three years of the date the negligence occurred, or of the date on which the injured person should reasonably have been aware that there might be grounds to bring a claim (if that date is later).

Where a child is injured by negligence, they usually have until their 21st birthday to formally start their claim at Court. There are circumstances in which the rules differ; for example, where the claim is for someone who does not have mental capacity to bring a legal claim.

In a claim for a wrongful birth, the claim is made by the parents, usually the mother, (and not the child) and therefore the standard three year limitation period will usually apply.

It takes time to investigate a claim, so you should contact us as soon as possible.

Will the case be decided by the Court?

Probably not.  The vast majority of medical negligence claims are not decided by the Court.  Successful claims are usually resolved through agreement of a settlement either before or during Court proceedings. Occasionally, the Court will decide a case, if it cannot be resolved any other way.

Where the claim is for a child, or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement.  This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person.

We are struggling with the effects of our child’s disabilities.  Will it take a long time before the case is concluded?

Medical negligence claims typically involve detailed investigation and expert evidence.  They often take a number of years to resolve.  

Our approach is to seek an admission of liability (i.e. confirmation that negligence occurred and caused injury) as early as possible in the process.

When liability is established, the Defendant usually has to pay part of the compensation immediately.  This allows your child’s needs to begin to be met from the compensation, while the work to quantify the full amount of compensation continues.

How do I access medical records?

Medical records are usually the starting point for our investigation of a claim.  With your permission; we request these records directly from the treatment provider(s).

Our clients sometimes wish to obtain copies of their birth notes and their child’s medical records themselves, before deciding whether to begin a claim.  Please see our Guide to Accessing Medical Records for further information on how to request records.

Do you offer 'no win, no fee' agreements?

Conditional Fee Agreements (known as ‘no win, no fee’ agreements) are the most common way that the medical negligence claims we undertake are funded. This gives clients the reassurance that they will not (in almost all cases) have to pay any legal costs in the event that they are not successful with a claim. We will explain all possible funding options with prospective clients.

Please see our page on How are claims funded?

Other organisations and resources that may help

• AvMA (Action against Medical Accidents) 
• GMC (General Medical Council)
• NMC (Nursing & Midwifery Council) 
• Parliamentary and Health Services Ombudsman
• APIL (Association of Personal Injury Lawyers)