QC wins landmark case for Skegness para-showjumper, 20, with spina bifida, who is suing her mother's doctor

Evie Toombes, 20, of Skegness, brought the claim to the High Court in London, alleging Dr Philip Mitchell negligently failed to advise her mother, Caroline Toombes, to increase her intake of folic acid.

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.

Susan Rodway QC was instructed by Tim Spring of Moore Barlow in the case of Toombes v Mitchell, in which Her Honour Judge Coe QC on Wednesday handed down judgment in favour of the claimant.

In February 2001, Evie's mother attended Dr Mitchell at the Hawthorn Medical Practice in Skegness specifically to ask his advice as to the steps she should take before trying to become pregnant.

In particular, Mrs Toombes was concerned about waiting for some time after stopping the contraceptive pill.

She had also heard mention of folic acid and raised this specifically with the doctor.

According to an article on the Essex Chambers website, Dr Mitchell "had no independent recollection of the consultation and was forced to rely upon his contemporaneous note and his ‘standard practice'".

Essex Chambers state: "His note was woefully inadequate with the only reference to folic acid being ‘folate if desired’.

"The court accepted Mrs Toombes recollection that Dr Mitchell did not tell her about the relationship between folic acid supplements and the prevention of spina bifida.

"He told her that if she had a good diet folic acid supplements were ‘not necessary’ and that she should go away and have ‘lots of sex’.

"Nine months later the Claimant was born with a form of spina bifida.

"The inadequacy of the note was clearly important. The court rejected Dr Mitchell’s evidence that he provided advice in accordance with the recommendations at the time ( all of which referred to folic acid supplements taken before becoming pregnant) and found that had proper advice been provided the Claimant’s mother would have delayed conception for about a month whilst taking the supplement.

"This would have led to a later conception of a normal, healthy child.

"The unique legal issue in the case was whether the Claimant had a cause of action for being born in her damaged state."

Essex Chambers have stressed the "alternative was not based upon an argument that she (the Claimant) should have been terminated and hence avoided issues of ‘wrongful life’ and ‘wrongful birth’.

The statement reads: "In the former, the courts have consistently turned their face against such an action as repugnant to the law.

"In the latter, the claim has to be brought by parents of the injured child."

The QC has further clarified the decision on Twitter. She said: "If a child is born with disabilities and there has been negligence in the advice given to the child’s parent, the parent can bring a claim for damages – a 'wrongful birth' claim.

"In 2020, the court decided that the child could also bring a claim, if they were saying that without the negligence, a different child would have been conceived who would not have had disabilities. The GP did not appeal this decision.

"The Claimant in this case was born in 2001 with a form of spina bifida. Her mother said that she had gone to her GP to ask for pre-conception advice. She was told there was no need to take folic acid if her diet was good.

"The GP conceded that if that was the advice he had given, it was negligent and wrong. He said that he had given better advice and suggested that she take folic acid.

"The court preferred the evidence of the Claimant’s mother and accepted that if she had been given the right advice, she would have delayed conception while she took a course of folic acid.

"The case was not concerned with whether folic acid would have prevented spina bifida in the Claimant. It was the timing of the conception and that it was in a folic acid deprived state that was relevant."

The claim now proceeds to the assessment of damages for the claimant’s injuries, which will be used to fund the ongoing expenses of living with spina bifida.

In spite of her disability, Evie she has continued to compete in showjumping, nationally and internationally, she educates children about invisible illnesses and works at Nottingham University.

The former Skegness Standard Champion has even written a children's book about living with disability - winning her the Inspiration Young Person Award at a Wellchild charity event in 2018. when she met the Duke of Sussex and Megan Markle.

According to her own website, evietoombespararider, Evie describes her motto in life as: 'Find a way, not an excuse.'

She writes: 'I’m Evie Toombes, you may know me best for my background in para showjumping with my horse Daisy, or for my motto of #FindAWayNotAnExcuse, blog and work raising awareness for invisible illnesses.

"I was born with a form of Spina Bifida, which affects the nerves to my legs, bladder and bowel, but having a passion in life gives me purpose and direction.

"When I began sharing my journey and writing blogs I never imagined how many people were in the same situation, feeling alone yet embarrassed- until I began receiving messages telling me how much something I’d written had helped them.

"Pretty soon I realised that sharing all the things I was so keen to hide could have a positive impact and help towards a shift in perceptions of chronic illnesses.

"I am so keen to continue my mission and reach as many people as possible with my message of ‘Find A Way Not An Excuse’, and so far the support and help from people who have truly believed in me and my mission has made this possible."

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