A professional negligence claim, made against solicitors who advised parents of a child born with abnormalities that they had no liability claim for clinical negligence against a NHS Trust, has been dismissed at the Court of Appeal.
The recent ruling follows several attempts by the parents who sought a claim against a hospital who reported a pre-birth scan had detected a thickening at the back of the baby’s neck but stated there was minimal risk. All other test results were said to be normal and there was no sign of any genetic abnormality.
Scans conducted at regular intervals over the remaining four months of pregnancy did not reveal any abnormalities although the unborn baby’s slow growth and size was of concern. However, at the birth it was discovered that the baby did have multiple congenital abnormalities, including stunted growth and deformity of the feet. Consequently, in the years that followed, the child required ongoing hospital treatment, but passed away aged just eleven years old.
When the parents initially approached a solicitors firm they were advised that the claim could not succeed on liability and if they proceeded with the claim they would incur a ‘very big risk’ of having to pay the NHS Trust’s court costs.
A second solicitor firm advised that the parents had received “bad advice” and began a professional negligence claim against the original solicitors. However, the court found in favour of the first law firm, a verdict which was to be further contested by the parents.
The Court of Appeal heard from the claimants that two medical experts had attended an earlier conference by telephone to debate the merits of the case, but the judge rejected the complaint on the grounds that they did “not need to be in the same room.” The non-attendance of an expert radiologist was also accepted as a written report had been filed and “no further elaboration was required.”
The judge commented that, “It is frequently the duty of lawyers to give unwelcome advice to their clients. If they conclude that a claim or a defence has no real prospect of success, it is their duty to say so bluntly”, adding that the firm “acted correctly” during the conference and a letter sent three days afterwards by the law firm was entirely in line with counsel’s advice.