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Case of Note: Evie Toombes v. Dr. Mitchell (High Court 21 December 2020 – Lambert J. and 1 December 2021 – Judge Coe QC)

Date published:

Introduction

This was an unusual case which appeared before the High Court on two occasions.  It involved alleged negligence by Dr. Mitchell, a general practitioner, in giving advice to Evie’s mother in February 2001 concerning folic acid supplements.  Evie was born in November 2001 and has a number of disabilities including a neural tube defect and gastrointestinal problems.  Despite these, she leads an active life as a para-horse rider, campaigner on hidden disabilities and an author.  In the first ruling, Mrs. Justice Lambert held that Evie had a lawful claim for damages for personal injury, under Section 1 of the Congenital Disabilities (Civil Liability) Act 1976, subject to the precise facts.  This report concentrates on the second hearing.

Detail

Evie’s mother attended an appointment with Dr. Mitchell for counselling on 27 February 2001.  She asked about folic acid and claimed that Dr. Mitchell reassured her that if she was eating a healthy diet, including cereals and bread (which she was), it was not necessary to take folic acid supplements.

It was the GP’s case that Mrs. Toombes was probably already pregnant prior to this appointment and that the advice he gave was not negligent, but rather in accordance with the recommended guidance at the time.  Dr. Mitchell unsurprisingly did not recall any specific details of the consultation and relied upon his usual practice.  His note of the consultation read: “Preconception counselling. adv. Folate if desired discussed”.  He said that his usual advice at the time was to tell patients that guidance recommended folic acid supplementation daily for women preparing for pregnancy and during the first trimester.  However, if the patient had very good folic acid intake from their normal diet, the benefit of taking additional supplementation would be less important.  He therefore tended to leave the choice to the patient.

On reflection, Dr. Mitchell told Judge Coe that he considered his note to be inadequate and confirmed that dietary intake of folic acid would have to be very good for supplements not to be necessary.

Mrs. Toombes maintained that she could not have been pregnant on 27 February because between her last menstrual period and the consultation, she had not engaged in sexual intercourse.  She also stated that when she was seen by a midwife on 25 March 2001 and was advised to take folic acid supplements, she did so immediately.

Judge Coe found both Mr. and Mrs. Toombes to be “entirely honest and straightforward witnesses”.  She described the latter as “reliable and credible” and accepted her evidence.  This was despite the Defence maintaining that her account was undermined by a note made by the midwife on 25 March – “Current Medication – Folic acid”.

The judge also concluded that as Dr. Mitchell was reliant on his usual practice, his evidence was “not as reliable as it would have been if the note had been as complete as it should have been”.  Consequently, she accepted the mother’s version of what occurred during the consultation on 27 February, and that Mrs. Toombes came away from it under the impression that if she had a healthy diet, folic acid supplements were not necessary.  On the balance of the evidence, Mrs. Toombes was not pregnant on 27 February and if given appropriate advice she would have delayed conception for some weeks, to allow for additional intake of folic acid.  Mrs. Justice Lambert had accepted at the earlier hearing the claimant’s argument that delayed conception would have resulted in a genetically different person being born, who would have had a very low likelihood of possessing the same condition – in other words, on the balance of probabilities, a healthy child would have resulted.  Accordingly, there was judgment in favour of Evie.

Comment

In essence, the outcome of this case depended upon which witness the judge preferred.  She was clearly impressed by Mrs. Toombes in particular.  There must be huge sympathy for Dr. Mitchell, though, because he had to give evidence about an apparently routine consultation some twenty years earlier, and could only rely on his note, which was brief.  Mrs. Toombes convinced the judge that she recalled the consultation accurately, and overcame the hurdle presented by the midwife’s subsequent record.

Some commentators have suggested that this ruling sets an unhelpful precedent for the NHS, but we disagree.  It is a regular task for judges to have to decide between conflicting accounts.  That is what happened here.  Dr. Mitchell was in the unfortunate, but almost inevitable, position of not remembering a relatively unremarkable consultation two decades previously.  The message from this ruling is that the more detailed the note, the more likely it is that the practitioner will be believed by a court.