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.
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.