Several months ago, I wrote a Blog entry, “Wrongful Life?”, where I discussed whether, in New York, there is a legal remedy for “wrongful life” when a hospital or a doctor refuses to follow the terms of a patient’s living will and his or her health care proxy’s instructions resulting in pain and suffering by the patient.
The case brought before London’s High Court involves a claim for “wrongful conception” by a twenty-year-old woman who was born with spina bifida against the doctor who failed to advise the woman’s mother to take supplements that can prevent the condition before she conceived. The woman, Evie Toomes, alleged that the doctor was liable for her “having been born in a damaged state” as a result of the doctor’s failure.
Evie is a star horse jumper. She competes against abled and disabled riders. However, Evie’s condition necessitates that she sometimes has to be connected to tubes for twenty-four hours at a time and it limits her mobility. She has bowel and bladder issues. It is thought that her condition will worsen over time.
Evie’s mother claims that she sought the doctor’s advice prior to trying to conceive a child. She and Evie’s father specifically delayed their decision until after Evie’s mother consulted the doctor. The doctor encouraged Evie’s mother to conceive a child. He opined that Evie’s mother did not need to take folic acid if she had had a good diet. Evie’s attorney argued that, if the doctor had recommended taking folic acid, Evie’s mother would have delayed conceiving a child until she had started taking it, the theory being that she then would have had a “healthy” baby. The doctor’s attorney argued that Evie’s mother might have been pregnant when she consulted him and that he had given her “reasonable advice.”
Judge Rosalind Coe QC ruled in favor of Evie on the issue of liability. Judge Coe found that Evie’s mother was not pregnant when she consulted with the doctor and that he did not properly advise her with respect to folic acid’s ability to prevent spina bifida. She determined that the doctor’s improper advice resulted in Evie’s condition.
Unless the parties reach a settlement on damages, the court will decide that issue at a later date. Stay tuned.