Osbornes Successfully Settle Wrongful Birth Claim20 Jul 2021 | Nicholas Leahy
Nicholas Leahy, clinical negligence lawyer at Osbornes Law has recently negotiated the successful settlement of a wrongful birth case.
Our client, a Hungarian national fell pregnant in January 2018, something she found out whilst attending a gynaecological appointment at her local hospital.
She had attended for treatment to remove pre-cancerous cells which had been identified on her cervix and removed, and following a pregnancy test at this appointment, she was informed that she was pregnant. Our client requested a termination, for which she was referred to the British Pregnancy Advisory Service (BPAS).
However, despite presenting to BPAS for a termination when she was under 12 weeks pregnant, a series of errors in the care which was provided to her, meant that our client missed the legal date for a termination (up to 23 weeks and 6 days). She was therefore informed by her GP that she could not have a termination and she reluctantly decided to continue with her pregnancy.
Our client instructed Osbornes Law to pursue a clinical negligence case against BPAS for wrongful birth. The legal team in this medical negligence claim was led by Nicholas Leahy, with assistance from Diana Magyar, a Hungarian speaking paralegal.
Medical Negligence Leading to Wrongful Birth
There were a number of issues which caused our client to miss the legal date for a termination of her pregnancy in this case. Firstly, and perhaps most importantly, our client is from Hungary and speaks Hungarian as her first language – her command of the English language is very limited. This led to a number of errors in communication between her and BPAS. For many of her appointments with BPAS in the weeks leading up to the 23 week and 6 day cut off, our client was not offered a translator and BPAS simply relied on Language Line to communicate with our client. Our client had a complex medical history and communicating in her native language would have made explaining her medical history much easier than it was in the event. One of the key issues in this case was whether our client’s gynaecological history meant that she needed a referral to the NHS for a termination in a hospital setting. It was only after our client was seen by a Hungarian speaking clinician, that it became apparent that her medical history was not a contraindication to having termination under BPAS’ care.
Secondly, despite being aware of our client’s limited command of the English language, BPAS relied on our client to communicate complex medical information to her GP, rather than simply contacting our client’s GP to explain what the situation was. This led to more confusion and unnecessary delay which wasted vital time in the weeks leading up to the legal cut-off date. The task of breaking the news to our client that it was not going to be possible to have termination, was also left to our client’s GP in this case.
Thirdly, following disclosure of our client’s medical notes and the internal BPAS correspondence relating to our client’s care during the litigation, it became evident that BPAS did not have an adequate system in place to ensure that women are treated safely and to prevent errors from occurring. Our medical expert described communication between different BPAS staff members in this case as “chaotic”. It was clear that nobody within the organisation took the lead to ensure that proper clinical pathways were followed. Additionally, there was a failure to adhere to guidelines produced by the Royal College of Obstetricians and Gynaecologists (RCOG) which state that a date for a termination must be offered within 5 days of the decision to proceed.
Further, the decision was taken by a staff member at BPAS to recalibrate our client’s gestation date following a scan at her second appointment with BPAS, meaning 10 days were added to her estimated gestation. Gestational dating is most accurate at 8-12 weeks of a pregnancy, and second and third trimester ultrasound scans are less accurate for dating than first trimester scans. Our client was over 14 weeks pregnant (according to her original dates) at the date of this appointment and RCOG guidance states that dating should not be changed after 14 weeks’ gestation.
Damages for Wrongful Birth
The above are examples of the most notable of the breaches of duty which happened in this case. However, despite obtaining supportive expert medical evidence in our client’s case, liability was denied by BPAS. Attempts at negotiating a settlement to the case before issuing court proceedings failed and so in February 2021 court proceedings were issued.
We formally served our client’s case on the Defendant shortly after this, alleging that were it not for the Defendant’s breaches of duty, our client would have been seen for assessment within 5 working days of her first referral.
It was our client’s case that had this happened, she would have been assessed for treatment as a patient without any medical issues. Thereafter, she would have been scheduled for termination within 5 working days of her assessment in line with RCOG guidelines. Allowing for some unavoidable delays, our client would have ultimately had a vacuum aspiration termination under the care of BPAS before 14 weeks and 5 days’ gestation, and well within the legal timeframe.
After formal service of our client’s claim but before service of the Defence to the claim, we were able to negotiate a settlement with the Defendant. Our client can now seek the psychological treatment which she desperately needs as a consequence of the substandard care by BPAS.
If you have suffered an unwanted pregnancy and birth as a result of clinical negligence the law entitles you to damages for wrongful birth. Our solicitors have many years of experience in dealing with these types of cases and are able to advise you on what the law is and on the damages which you can expect to recover.
If you think you may have a claim for wrongful birth, please call Nicholas Leahy on 020 7681 8716 for a confidential conversation to discuss the matter in further detail.
Nicholas Leahy Solicitor
"Nicholas Leahy works extremely hard and understands the commercial sensitivities of clinical negligence litigation."
Excellent service from Osbornes throughout on a difficult clinical negligence claim. Nicholas Leahy who handled the claim was responsive and professional throughout, while also providing pragmatic advice and clear drafting.
Working with Osbornes Law was the best decision I could have made. Nick was really attentive to my issue and did a very thorough job. He truly made the process headache free! Highly recommend them.
Nick Leahy has been my Solicitor throughout this journey and has been absolutely amazing; kind, approachable and extremely supportive... Through some dogged determination by Nick we achieved our goal without having to go to trial. I cannot thank Nick, Stephanie and all of the team at Osbornes highly enough for achieving a very favourable settlement, the outcome of which will make a huge difference to myself and my family.
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