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GP who lost folic acid legal case will not appeal verdict

GP who lost folic acid legal case will not appeal verdict

A GP who was judged by the High Court as having failed to advise folic acid in pregnancy, 20 years ago, will not appeal the verdict.

Evie Toombes, 20, who has a rare neural tube defect called lipomyelomeningocele, won the case against Dr Philip Mitchell two weeks ago in a ground-breaking legal case.

She had argued that if her mother had been given adequate advice, she would never have been conceived or born.

Medical professionals on Twitter called for the decision to be overturned, and showed their support for Dr Mitchell with the hashtag ‘#IAmPhilipMitchell’.

But Dr Mitchell’s lawyers said today that the judgment ‘is not appealable’.

The judge at the preliminary trial had refused permission to rely on any expert evidence, meaning the liability trial was based soley on ‘facts’ – or Dr Mitchell’s word against Ms Toombes’.

Clyde & Co partner Joanna Bower, Dr Mitchell’s solicitor, said that ‘on this case, the judge was actually entitled to prefer one witness’s evidence over the other’.

And she added: ‘It’s very rare in the extreme for appellate courts to interfere with the judge’s finding on the facts. And that’s because appeal judges are unable to hear what the witnesses have said in evidence or to assess their demeanour in the witness box.

‘And so appeal judges tend to leave it to the trial judge to make findings on the facts. They only really interfere if the law is wrongly applied, or if the ruling is wholly irrational. But on this case, the judge was actually entitled to prefer one witness’s evidence over the other.’

She added that NHS Resolution has accepted the findings of the court ‘will be seeking to work constructively with the claimants and her legal advisors to come to a final resolution of her claim’.

Pulse understands that Dr Mitchell will not personally be expected to pay any damages, as these will be covered by NHS Resolution.

Regarding whether the case sets a precedent, Ms Bower said that ‘although it does open the door to claims for preconception advice, it’s unlikely to open the floodgates’.

But she added that the takeaway for GPs from the case is that ‘your contemporaneous notes really are very important’.

The news comes as GPs have been told to continue advising folic acid supplements in pregnancy after Government plans for fortifying flour come into effect.

The Department of Health and Social Care (DHSC) announced in September that folic acid will be added to non-wholemeal wheat flour across the UK following a regulatory review.

It said this will ‘help avoid around 200 neural tube defects each year’, which represent around 20% of the annual UK total.


Nigel Dickson 15 December, 2021 12:22 pm

It beggers belief that Dr Mitchell and his lawyers are not appealing given “the facts” considered by judge in this case are so obviously wrong. “The facts” speak for themselves Like other forms of spinal dysraphism, lipomyelomeningocele has complex causes that are not yet completely understood. It is slightly more common in babies of Hispanic ancestry, babies born to mothers who are particularly young or old for childbearing, and babies born to mothers who are obese.

Unlike some other forms of spinal dysraphism, lipomyelomeningocele does not generally seem to be inherited in families. It does not seem to be influenced by the presence of folic acid. (Folic acid supplementation in mothers is known to reduce the incidence of other forms of spinal dysraphism, such as myelomeningocele, or open spina bifida.)

Dr Mitchell’s lawyers need to appeal “the facts” – just because the Judge preferred the testimony of one over the other is silly – personalities and the personal preferences of a judge are not justice – a trial result like this is a sham in that it ignores “the facts”

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Doc Getmeout 15 December, 2021 1:10 pm

Very odd of no appeal.

The appeal is based on the science whether the outcome (of this condition) is directly related to folic acid supplements, not taken.
The case of a GP ‘advice’ is now irrelevant!

NHS resolution is the taxpayer liability so who cares?

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Richard Greenway 15 December, 2021 1:40 pm

Shame -but I would imagine that an appeal would mean many more years of being dragged through the courts and stress.
We need no fault compensation in the UK badly. To make an award to a disabled child or adults is quite reasonable -the issue is that the only way to get this in UK is to sue an individual, with all the ensuing damage to the person.

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Michael Mullineux 15 December, 2021 1:58 pm

As with anybody who has had the misfortune of being the subject of legal proceedings, Dr Mitchell is almost certainly shattered and wishing to put this behind him. Best wishes and good luck to him, there but for the grace etc we all go.

David Church 15 December, 2021 3:25 pm

It would appear that the ‘facts’ considered are those reported by the claimant, that she would not have been borne if Dr M had adequately advised. The fact that she had been borne is therefore factual proof that adequate advice had not been given. This is a logical tautology.
Unfortunately it is based on faulty premisses : whether the amount of ‘advice’ as opposed to ‘coercion’ from Dr M had any influence whatsoever on the outcome – but that was not one of the ‘facts’ being considered ?

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John Glasspool 15 December, 2021 5:43 pm

It’s sick. All doctors in future must write an encyclopedia for every consultaiton. Bring on the 30 minute appointment. Er… no, I thought not.

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Slobber Dog 15 December, 2021 7:40 pm

Appalling appalling appalling miscarriage of justice and needs to be called out and reversed. The judge in this case should be publicly shamed for incompetence and then dismissed .

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Just My Opinion 15 December, 2021 9:05 pm

I have changed my practice. I can’t possibly anticipate every possible outcome of a pregnancy. Maybe I forgot to ask about family history of some rare inherited condition and failed to offer advice about it, and I don’t want to be sued for that 20 years later.
If pre-conception advice is asked of me, I will refer to a consultant, and say if they get pregnant before having seen the consultant they will have done so against medical advice.
I encourage all colleagues to do the same.

Zahira Bachelani 16 December, 2021 2:21 am

I agree with all the above comments.

I would add my disbelief that the judge has the right to refuse expert witnesses at such a trial. How is this justice?
Is this judge practicing soundly? Who is she liable to? What authority ensures that judges are practicing safely?
Causality is central to the case brought against the Dr. Once causality is established, then you can move on to what was said by whom and how.

If this judgement and the manner it was arrived at is not challenged by the GMC / BMA, this is a turning point in the history of medicine in the UK in my view.

Dr N 16 December, 2021 10:48 am

This case was never about malpractice it was about getting funding for disability.

Peter Frost 16 December, 2021 10:49 am

If Dr Mitchell reads Pulse then I’d just like to offer my heart felt support to him. Legal proceedings of any kind are immensely stressful and to end up with a judgement like this is baffling.
As another post stated, this could have happened to any of us.
Good luck with the future Dr Mitchell, and put this bizarre episode behind you.

Patrufini Duffy 16 December, 2021 4:39 pm

What next, sue you for vitamin D and lack of clean air and herpes STD?

santhanam sundar 9 February, 2022 12:23 am

I fully support financial compensation for Miss Toombes (ideally a no fault scheme should have been available).

But I am surprised to read the news that “Dr Mitchell’s lawyers said today that the judgment ‘is not appealable”

Even though I am not a medico legal expert on these matters, I hope they read my views posted on BMJ rapid response section.

I feel that implicit misuse of statistics is as harmful as explicit misuse.

I also feel that Parliament should enact a law that forces the Judges to consider the wider societal implications of their judgement if a judgement changes the medico-legal landscape (our case based laws would be better for it).

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