Last week, Julia Hartley-Brewer interviewed me on the radio at LBC radio to comment on the background to a professional negligence claim brought by Joanne Chinnock and Paul Schumann against their former legal advisors. The case concerns a clinical negligence claim brought by the couple relating to the birth of their disabled daughter Bethany Chinnock-Schumann.
Joanne was suing for compensation on the basis that when she was pregnant the doctors treating her antenatally failed to advise her that tests had shown that there was a significant risk that their child would be born disabled. Joanne had told the doctors that she “didn’t want a damaged child” and her case was that if she had been properly advised she would have terminated her pregnancy.
Bethany was born with an extremely rare chromosomal disorder and was nearly blind and in almost constant pain. She died in 2009 aged 11. During her lifetime her devoted parents cared for her and this included catheterising her and giving her medication day and night.
In 2001 Ms Chinnock and Mr Schumman tried to sue the hospital concerned for “wrongful birth”. Unfortunately, the case was abandoned and they received no compensation. It is not now possible for them to resurrect this claim because of the time limit for bringing clinical negligence cases.
Instead, the couple are now pursuing a claim for professional negligence against their former legal advisors as they believe that their original claim had good prospects of success and that the decision to abandon the case resulted from negligent professional advice.
I cannot comment on the merits of this particular professional negligence claim, but I can comment in general terms about professional negligence claims against legal advisors (solicitors and barristers) in this type of situation.
Professional negligence claims are governed by the same general rules as other claims for compensation caused by negligence. It is necessary that the defendant owed a “duty of care” (which a professional will always owe to their client), that they “breached” that duty (i.e. that they were negligent) and that the negligence caused the claimant to suffer loss.
In the circumstances referred to above, Ms Chinnock and her partner will have to show that the their previous legal team were negligent in advising them to abandon the claim (i.e. that no reasonably competent lawyers would have done so) and that if the claim had continued, there was a reasonable chance that they would have been successful and would have received some compensation. They do not have to show that their wrongful birth claim was certain to succeed; only that it had reasonable prospects of success. If they can prove this (and the negligence), then they will receive compensation based on their “loss of a chance” of winning the original case. For example, if the original claim was worth £100,000 and chances of success were about 70% (but are now zero because of professional negligence), then they would be entitled to compensation from their previous legal team of £70,000 (70% of £100,000).
Lawyers handling personal injury and clinical negligence claims can be negligent in a number of ways. In addition to advising clients to abandon meritorious claims, such advisors may be negligent in missing the time limit for starting a case at court or having a case struck out for failure to comply with the court rules or advising a client to settle for a sum which was clearly less than the case was worth (even after taking into account any difficulties on liability).
For example, I acted on behalf of a police officer who sustained a knee injury during the course of his employment. He was unable to work because of his injury and instructed a firm of solicitors to pursue a personal injury claim on his behalf. Unfortunately his solicitor failed to investigate his injuries and failed to issue proceedings against his employers within the three-year “limitation period” for doing so. He came to me for legal advice.
I reviewed the case and obtained further expert evidence on my client’s knee injuries which proved to be long term and debilitating. It was quite clear that the previous firm had missed the limitation period and I pursued and issued a professional negligence claim against them. We settled for in excess of £350,000. My client was delighted, his employers relieved and his previous firm were significantly out of pocket.
Professional negligence is awkward. It can be a difficult area of law. It also sits uncomfortably for some, when a firm of solicitors is in the position where they are investigating a claim against another firm of solicitors for effectively failing to do their job properly. However, people injured through the fault of another are entitled to a competent professional service from the lawyers whom they instruct to bring a claim. If they are unlucky enough to be the victim of negligence again (this time from their legal advisors), then they are entitled to a remedy which replaces the money which they have lost through professional incompetence.