In this landmark case of Toombes v Mitchell  EWHC 3234 the Claimant, Evie Toombes, was born on 19 November 2001 and diagnosed with lipomyelomeningocele (LMM), a form of neural tube defect. She suffers from impaired mobility, double incontinence and a gastrointestinal disorder.
The Claimant’s mother, Mrs Toombes had attended a consultation with her GP, Dr Mitchell (the Defendant) on 27 February 2001 for pre-conception counselling. It was alleged that the advice given by Dr Mitchell in relation to taking folic acid supplements was negligent. Mrs Toombes contended that, if she had been properly advised, she would have would have delayed conception, in which case the Claimant would not have been born and a genetically different sibling would have been born without disability.
The Preliminary Issue – did the Claimant have a cause of action?
The Defendant argued the Claimant was precluded from bringing the claim in her own right because it was a claim for “wrongful life” and therefore excluded by the Congenital Disabilities (Civil Liability) Act 1976.
This issue was decided in December 2020 by Lambert J ( EWHC 3506) who concluded the Claimant was entitled to bring a claim under s 1(2)(a) of the Act in relation to pre-conception advice.
The factual liability issues before HHJ Coe QC at the substantive hearing were:
- What advice was given by Dr Mitchell at the consultation on 27 February 2001 and whether this was negligent.
- Whether or not Mrs Toombes was already pregnant at the time of the consultation.
- Whether or not Mrs Toombes would have delayed conception had she received the correct advice.
Mrs Toombes said she made the appointment with Dr Mitchell to find out everything she was recommended to do to ensure a healthy baby. She was adamant that she could not have been pregnant prior to the consultation. She asked about folic acid and was given the impression that taking folic acid supplements was not necessary for a healthy pregnancy if she was eating a balanced diet. She said that she was not told of the risks of spina bifida and neural tube defects from folic acid deficiency and was not provided with relevant guidance. She did not start taking folic acid until she was advised to do so at her booking-in appointment on 25 March 2001.
Mrs Toombes said that, had she been advised to do so by Dr Mitchell, she would have taken a folic acid supplement and tried for a pregnancy at a later date.
Dr Mitchell said that he could not recall the details of the consultation. His evidence was based on his usual practice at the time, assisted by the contemporaneous medical record which read "Preconception counselling. adv. Folate if desired discussed". His usual practice was to tell patients that the relevant guidance recommended a supplementation of 400 µg daily. If a patient were to ask whether supplementation was necessary, he would explain that correcting poor folic acid levels was shown to prevent spina bifida and neural tube abnormalities but that if they had very good folic acid intake from their normal diet, then additional supplementation was less important. He would not advise his patients to delay attempting to conceive but to start taking folic acid and continue taking it until after the 12th week of pregnancy.
HHJ Coe QC made the following findings:
- Dr Mitchell should have given Mrs Toombes advice about folic acid in accordance with the relevant guidelines and in particular that the advice was to take folic acid daily before conception. This was not the case.
- Mrs Toombes was not pregnant at the time of the consultation.
- Had Mrs Toombes been correctly advised, she would have begun to take folic acid at the recommended dose and waited about a month or so before trying to conceive.
- In the circumstances, there would have been a later conception which would have resulted in a normal healthy child.
The Claimant’s claim therefore succeeded, with quantum to be determined.
Practical Implications of the Decision
Whether or not the Claimant’s disability would have been prevented by folic acid was irrelevant; the likelihood of LMM is low and there was no genetic component in the cause of her disability.
It is worth noting that Mrs Toombes would have been entitled to bring a claim for wrongful birth, in which case damages would have been limited to those persisting over her lifetime rather than the Claimant’s.
The parties accepted that it is not common for GPs to be consulted for preconception advice. The judgment is therefore unlikely to open any floodgates for future claims against GPs.
The case does re-emphasise the importance of detailed and accurate contemporaneous records. Dr Mitchell accepted that on reflection his note of the consultation was inadequate, yet it was the only assistance he had in recalling the consultation which had occurred some 20 years previously.
Clear and detailed medical records are of vital importance in defending any clinical negligence claim, as well as for patient safety and continuity of care.