Philippa Taylor

What is the true cost of ‘wrongful births’?

Philippa Taylor was Head of Public Policy at CMF until September 2019 and now works with CARE. She has an MA in Bioethics from St Mary’s University College and a background in policy work on bioethics and family issues.
The views expressed do not necessarily reflect those of CMF.

prematureA tiny article in a free Metro newspaper last week caught my attention:

‘Wrongful birth bill hits £56.1 million.

Hospitals have paid out more than £10 million a year in compensation to mothers who had a disabled baby without being offered the chance to have an abortion. The NHS Bill over so-called ‘wrongful birth’ cases for the past five years has been £56.1 million.’

The same short article (for which I could find no link online) also stated that the claims for ‘compensation’ have arisen from inaccurate reading of scans or test results and a failure to screen or diagnose abnormalities. The average payout was £710,000 for the 79 successful claims.

The article provided no more information than this and I could find no other news piece on it, nor a record for these figures on any NHS website, including on their litigation site. Only one news report, from 2012 stated that £54m was paid out for claims over a five year period.

There is clearly a dearth of publicly available, up to date, data on this issue, particularly on the actual monetary costs to the NHS or information on the numbers and reasons for the claims and outcomes etc.

Nevertheless, the Metro news article generates several interesting – and concerning – issues.

First, some brief background to a ‘wrongful birth’ claim.

According to Wikipedia, a wrongful birth action is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.

The claim for damages is based on the cost to parents of raising an unexpectedly disabled child.

It should be distinguished from a ‘wrongful life’ claim where a child seeks damages for being born with a birth defect rather than not being born.

The NHS handles negligence claims under the NHS Litigation Authority (NHSLA). On the NHSLA website I eventually found a report that details ten years of maternity claims. This comments that: ‘only a very small number of [ultrasound] scans resulted in litigation because of an alleged failure to detect a fetal anomaly.’
Nevertheless, the report continues: ‘…such claims can result in awards of damages totalling many hundreds of thousands of pounds in addition to the emotional, psychological and practical effect on a family who have a child born with a disability which could have been detected.’

Interestingly, it then goes on to explain that: Legal claims in such cases can be brought by the mother of the child who is born with the abnormality on the basis that, had it been detected, she would have been offered counselling and the option of termination and would have chosen to terminate the pregnancy.’ (my emphases).

‘Wrongful birth’ cases are among the most controversial of medical compensation payments because parents are, in effect, saying these babies would have been aborted if the parents had known about the disability so therefore the State must pay for the costs of their upbringing.

Other interesting details from the NHSLA report (p28) are drawn from a subset of claims that were reviewed in more detail. The most common structural anomalies for which claims were made were: ‘development/ septal defects/multiple anomalies and spina bifida’, accounting for 28% of the claims reviewed. Claims were made for a ‘small baby’, ‘absent / short radius or ulna’, and ‘mono-amniotic twins’, amongst other reasons.

Negligence claims were based on: ‘failure to identify the abnormality’ and ‘failure to advise of the implications of the abnormality and/or offer termination.’

At the time of the NHSLA report (published in 2012), over £10m had been paid out to claimants and a further £40m was reserved for claims not concluded. This excludes legal and other costs, which would add another £8m or more!

Without the benefit of more detailed factual information there are, nevertheless, several points worth noting.

1. Some parents may sue the NHS on the basis that had they known in advance about the disability, they would have better prepared psychologically and/or practically to deal with the extra cost and stress of bringing up a disabled baby or they might have had specialist surgical intervention pre or post-natally. While such claims would certainly generate far fewer ethical concerns (assuming termination would not have been considered an option in such cases), it is not clear that any legal claim would be successful.

2. The expansion of the right to sue because of the birth of a disabled child increases pressure on health professionals to put greater effort into seeking out any baby with a possible disability, with a strong presumption that parents will then choose abortion. Doctors are increasingly practising defensive medicine, and doing a lot of (ever more accurate) testing.

3. Fear of liability may lead health professionals to really encourage screening rather than neutrally offering it as an option. This creates tension between a professional duty to respect reproductive choice (without pressure) and the rights of disabled children.

4. There are a range of conditions that form the basis of claims and not all can truly be classed as severely disabling (a ‘small baby’, ‘short ulna or radius’?). The range will inevitably widen.

5. Fear of future negligence claims leads to subtle or direct pressure being put on parents who decide not to abort, to reconsider their decision. There is evidence that this is already happening.

6. Wrongful birth claims reinforce the view that the birth of a child with a disability is a harm for which one may be compensated. The whole process encourages the perception of the disabled as people whose existence should have been prevented. But it is not wrong that babies are born with disabilities.

7. Christian teaching is that all people are made in the image of God, with or without disabilities. Bringing up a child with special needs involves major challenges and requires endless grace, but at the heart of the Christian gospel is the sacrifice that the Lord Jesus made for us, giving up His life for us. And Paul reminds us that ‘bearing one another’s burdens’ is at the very heart of Christian living (Galatians 6:1).

So what is the true cost of ‘wrongful birth claims’?  It would seem – though more information is needed – that the cost is already in the millions of pounds to the taxpayer, and this is likely to increase.

But the greater price we are paying is in the generation of a culture that sees the birth of disabled children as not just an inconvenience and a financial burden, but to be avoided at all cost.

Posted by Philippa Taylor
CMF Head of Public Policy



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