Deborah Mackay v Bedford Hospitals NHS Trust
This was a claim by Deborah Mackay, following the birth of her son, Calum Mackay. Calum was born with severe spina bifida, hydrocephalus, fetal valproate syndrome and talipes. He was severely developmentally delayed and had profound learning difficulties. He suffered with seizures. He would be unlikely to have a mainstream education or obtain future employment. It was likely that he would be dependent on a wheelchair. He would never have control of his bladder or bowels. He required significant care and specially adapted accommodation. His life expectancy was, however, almost normal.
The Defendant admitted that the spina bifida could have and should have been identified on ultrasound scan antenatally, and that had the diagnosis been made at that time, Mrs Mackay would have been offered and would have undergone termination of the pregnancy.
The usual position in a wrongful birth case is that the Defendant will pay all costs over and above those which would have been incurred in any event, had the child been born without disability. However, in this case, the Defendant argued that, on principles of distributive justice, it should only pay for those additional costs which were referable to Calum’s spina bifida and not the other disabilities (specifically, the fetal valproate syndrome) which could not have been detected antenatally.
We argued that not only was this argument without any legal merit, but was illogical, the Defendant having conceded that if the spina bifida had been detected antenatally, Calum would not have been born at all. Further, Calum’s injuries and disabilities were indivisible and it was not, therefore, possible to apportion the damage. Thus, the Defendant should pay for the additional costs associated with raising Calum arising out of all his disabilities.
We obtained interim payments totalling some £705,000 to enable Mrs Mackay to set up a care regime, to purchase some aids and appliances and to move to new accommodation.
Sadly, and very unexpectedly, Calum died aged 6.
After settlement negotiations, the claim settled in the sum of £330,000. Had Calum survived, the value of the claim would have been approximately £6 million.
Mrs Mackay’s property was now no longer suitable and she agreed to return the balance of the interim payments to the Defendant once her property had been sold.
Mrs Mackay said that “the way Tees had dealt with her had been fantastic” and that we had done “everything possible.” She said that Tees “could not have done more. The firm gave honest, professional advice, which I felt able to accept. I am very happy with how Tees dealt with all issues.”