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Evie Toombes’ Wrongful Birth

December 14, 2021

Spina bifida and folic acid

Many were startled last week to learn that Evie Toombes, who has a type of occult spinal lesion, a lipomyelomeningocele, which would not have been prevented by her mother taking folic acid, will be awarded damages against Dr Mitchell, her mother’s GP, who had failed to advise her correctly about taking folic acid. Evie is “an occasional wheelchair/Zimmer frame user”, and needs to self catheterise, but is also “a para-horse rider, a campaigner for hidden disabilities and together with her mother, the author of a book”. Click here for the news story, and here or here for the full judgment.

An earlier court had already ruled on the principle; if, with correct advice, Evie’s mother would have delayed conception, Evie would never have been born and another healthy child replaced her, Evie would be entitled to damages.

There are parallels here with abortion for fetal abnormality. In the 1970’s the Oxford philosopher, Richard Hare, argued that parents considering abortion should decide in the interests of all their potential future children. A mother carrying a fetus with spina bifida should abort in the interests of her, unconceived, but likely to be healthy, replacement child (click here). In my experience this is how many parents think, and I guess the legal arguments follow this sort of logic too. I find the earlier court’s decision rather congenial.

But the judge’s ruling that the doctor’s advice was so bad that no responsible body of GPs would have advised Evie’s mother that way, does seem harsh.

Imagine Dr Mitchell, back when the claim started, getting a lawyer’s letter presumably alleging that he’d failed to advise Evie’s mum to take folic acid. Imagine him pulling his 27 February 2001 note to read “Preconception counselling. adv. Folate if desired discussed” (judgment para 31). He must have felt out of the frame.

But here’s para 61. Both sides agree that Mrs Toombes had attended for preconception counselling at her own instigation.

“I find that Dr Mitchell’s note is completely inadequate. As I have found, Mrs Toombes’ main concern was with regard to stopping the pill and that is not referred to in the note at all. I find that Dr Mitchell’s assumption that “Folate if desired,” means that he gave his usual standard advice, but that Mrs Toombes raised an issue as to whether or not the supplement was necessary and he explored details of her diet, informed her of the risks and then left it to her to choose, is nothing but speculation after the event. The note gives the impression without more discussion that Mrs Toombes was told that she should take folic acid if she wanted to. I accept Mrs Toombes’ evidence that she came away from the consultation under the impression that if she had a healthy diet, folic acid supplements were not necessary. In the circumstances, I prefer the evidence of Mrs Toombes and find that she was not told about the recommended dose or the reason why folic acid supplementation was recommended or that it should be taken before conception and for the first 12 weeks of pregnancy.”

Nothing wrong with the judge making findings of fact. But we can now see the aspects of Dr Mitchell’s advice, that were so bad that apparently no responsible body of GPs would follow them. Here they are.

  1. Qualifying his advice with a comment that folic acid was not necessary if her diet was good
  2. Not telling her the exact dose
  3. Not saying that the reason was to prevent spina bifida
  4. Not saying that it should be given pre-conception

To a woman who was knowledgable enough to arrange preconception counselling! We used to think obstetricians had it tough.

Jim Thornton

2 Comments leave one →
  1. Dr Peter J Brunskill permalink
    December 15, 2021 2:08 pm

    It’s hard to see how someone who wouldn’t have been born if the Drs advice had been followed could claim damages for herself on behalf of the sibling who would have been, if conception had been delayed so that her mother could take Folic Acid.

  2. December 21, 2021 7:18 am

    TBF, it was a bit of a stretch for the earlier court, Peter. But for those of us who do abortions “in the future child’s interest” it makes kind of sense. What do you reckon to poor Dr Mitchell’s standard of care?

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