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Saturday, January 1, 2022

Liability suit - woman sues her mother's Doctor for her birth !!

In life, there are things one can control, while there are many that people seemingly has no control – in that long drawn hypothetical list – can one control – birth, one’s own birth at that ?? .. .. .. Evie Toombes, 20, was born with spina bifida and sometimes spends 24 hours-a-day connected up to tubes, but has forged a career in showjumping, competing against both disabled and able-bodied riders.


The King of Torts (2003) written by  John Grisham remained in the top 15 for over 20 weeks of its debut.   In the thriller, Clay Carter,  a poorly paid public defender reluctantly takes on the case of Tequila Watson, a man accused of a random street killing. Watson insists that he somehow wasn't in control of his body when he pulled the trigger, a story which Clay tries to dismiss, but can't get out of his mind.It leads to a drug named Tarvan;  drug addicts  experimented on illegally by an unnamed pharmaceutical company, and mass law suits that follow! – One cannot dismiss that such damage suits are peculiar to UK and Western countries. 

At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury.  To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.A tort, in common law jurisdiction, is a civil wrong(other than breach of contract) that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things. The word 'tort' stems from Old French via the Norman Conquest and Latin via the Roman Empire.Tort law involves claims in an action seeking to obtain a private civil remedy, typically monetary damages. A wrongful act, such as an assault and battery, may result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. 

In law, the warring parties may not be unknown or third parties . .. .. and in this interesting case, it is the woman suing her mother’s Doctor -  claiming that she should never have been born - has won the right to millions in damages. 

                        Evie Toombes, a star showjumper from the UK, launched the landmark "wrongful conception" case against her mother's doctor as she was born with spina bifida. The spinal defect means that Evie sometimes spends 24 hours a day connected to tubes, reports The Sun. The 20-year-old took Dr Philip Mitchell to court over his failure to properly advise her mother while she was pregnant. Evie Toombes claims that if Dr Mitchell had told her mother she needed to take folic acid supplements to minimise the risk of spina bifida affecting her baby, she would have put off getting pregnant. This, in turn, would have meant that Evie would never have been born.


Last month, in a unique 'wrongful conception' damages claim, Evie, from Skegness, sued Dr Philip Mitchell over his failure to advise her mother Caroline Toombes, 50, to take vital supplements before getting pregnant.She claimed that if the doctor had told her mother she needed to take folic acid supplements to minimise the risk of spina bifida affecting her baby, she would have put off getting pregnant until she had done so - and as a result Evie would never have been born at all.And in a landmark ruling in London today, Judge Rosalind Coe QC backed Evie's case and awarded her the right to a huge compensation payout.Her lawyers earlier said the amount Evie is claiming has not yet been calculated, but confirmed it would be 'big' since it would cover the cost of her extensive lifelong care needs. 

The judge ruled that had Evie's mother been 'provided with the correct recommended advice, she would have delayed attempts to conceive.'She added: 'In the circumstances, there would have been a later conception, which would have resulted in a normal healthy child.'The court had heard how Evie's mother had made a 'very precious decision to start a family' after losing her parents when she was young, and had refrained from sexual intercourse, 'until after they had received advice' from the GP.The ground-breaking ruling means that a healthcare professional can now be found liable for negligent pre-conception advice which results in the birth of a child with a serious health condition.  

Spina bifida is a fault in the development of the spine and spinal cord that leaves a gap in the spine.About 1,500 babies are born with spina bifida each year in the US, according to the CDC . In the UK, approximately 1 in 1,000 babies are born with the condition.Most cases are detected before birth, at the 20-week scan.The most serious form of the disease is called myelomeningocele. In myelomeningocele, the spinal column remains open along the bones making up the spine.The membranes and spinal cord push out to create a sac in the baby's back.This sometimes leaves the nervous system vulnerable to infections that may be fatal.In most cases surgery is carried out to close the gap in the spine after birth. But damage to the nervous system will usually already have taken place, resulting in:

•        partial or total paralysis of the lower limbs

•        bowel and urinary incontinence

•        loss of skin sensation

Folic acid, which is also known as vitamin B9, is essential to healthy development during early pregnancy and a deficiency can lead to neural tube defects in the foetus, including spina bifida.Earlier this month it was announced that the vitamin will be added to flour to reduce the risk of birth defects.In what experts described as a ‘momentous day’, ministers decided that white and brown flour should be fortified with the vitamin to ensure women get an adequate dose during the early stages of pregnancy.

Folic acid helps the body make healthy red blood cells. It is present in green vegetables like broccoli and Brussels sprouts – but pregnant women need a significantly higher dose.Women who are trying to become pregnant are already advised to take a daily supplement of 400 micrograms of folic acid before they conceive and during the first 12 weeks of pregnancy. 

During the trial last month, the court heard that 50-year-old Mrs Toombes - who is also a keen horsewoman - had gone to see Dr Mitchell at the Hawthorn practice to discuss her plans to have her first baby in February 2001.'This was a very precious decision to start a family, because she herself had lost her parents when she was young,' Mrs Rodway told the judge.'They had been refraining from sexual intercourse until after they had received advice at this consultation.'But despite discussing folic acid during the consultation, Mrs Toombes claimed that she was not told by Dr Mitchell of its importance in spina bifida prevention.Mrs Rodway said that, had Mrs Toombes been properly advised by Dr Mitchell, she would not have gone on to conceive as quickly as she did.She would have paused her pregnancy plans, started a course of folic acid treatment and then attempted to conceive, she claims. 

After her birth in November 2001, Evie was diagnosed with a lipomylomeningocoele (LMM), a form of neural tube defect to the spine leading to permanent disability.Her mobility is said to be 'very limited' and she will depend more and more on a wheelchair as she grows older, while she also suffers with bowel and bladder issues, the court heard. 

Michael De Navarro QC, for the doctor, denied liability, suggesting that Mrs Toombes might already have been pregnant when she went to see Dr Mitchell.He told the judge that Dr Mitchell claimed to have given 'reasonable advice' about the desirability of folic acid supplements being taken.It was his usual practice to tell prospective parents that 400 micrograms should be taken by those preparing for pregnancy and all through their first trimester once pregnant.He said he would have said that if the mother had a good diet and so good folic acid levels anyway, supplements would be less important, but denied saying they were not necessary.  

However, Judge Coe ruled against the doctor. 'In the circumstances I find that Mrs Toombes was not pregnant at the time of the consultation with Dr Mitchell,' she said in her judgment. 'She was not advised in accordance with the guidance to take folic acid prior to conception and for the first 12 weeks of pregnancy.'She was not advised about the relationship between folic acid supplementation and the prevention of spina bifida/neural tube defects.'I therefore find that the claimant's claim succeeds on liability.'The case will return to court to decide the full amount of Evie's compensation, unless agreed by the parties outside of court.  

According to her own website, Evie describes her motto in life as: 'Find a way, not an excuse. 'As well as competing in showjumping, nationally and internationally, she educates children about invisible illnesses and works at Nottingham University.She writes: 'I was born with a form of spina bifida...but having a passion in life gives me purpose and direction.'In 2018, she met the Duke of Sussex and Meghan Markle when she won the Inspiration Young Person Award at a Wellchild charity event. 

Interesting !  and strange are the ways of the people !!  

With regards – S. Sampathkumar
7th Dec 2021. 

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