It's quite easy to see how the lady's antenatal care could have been mismanaged. Anyone on ANY epilepsy meds that falls pregnant, for a start, should be put on a FAR higher dose of Folic acid than normal - 5mg as opposed to 400 micrograms - more than 100 times as much.
If she wasn't advised by anyone overseeing her medical care to do this, then they ARE being negligent, and raising her risks of having a child with Spina Bifida IMMENSELY.
Also, you then get into the fact that Epilim in particular (sodium valproate) has LONG been known to be teratogenic by the pharmaceutical industry, and also my the medical professionals, and in particular raises the risks of Spina Bifida hugely.
There have been plenty of legal issues surrounding this, but it should have been advised to her that to lower the risk of Spina Bifida, once pregnant, she should be on a 5mg/day dose of Folic acid.
And if her pregnancy was planned rather than accidental, then any medical professionals should have referred her to her Neurologist to discuss alternative epilepsy medications due to the teratogenic risks of Epilim in pregnancy.
There are plenty of other epilepsy medications that have a far lower, barely higher than normal, risk of birth defects than Epilim.
It is for this reason that the Association of British Neurologists doesn't recommend Epilim as a first line treatment for a woman of child-bearing age now.
And then there is the fact that the Spina Bifida was not picked up on her anomaly scan. Which it SHOULD have been, as the Mother was known to have both epilepsy and be on Epilim, thus raising her risk factors dramatically.
The anomaly scan should have been performed by a senior sonographer WITH a Paediatric specialist present to look specifically for any signs of Spina Bifida.
So IMO, the woman's medical care WAS negligent.
And, harsh as it is, and I'm sure she loved her son dearly whilst he was alive, she has stated that she would not have continued with the pregnancy had she known prenatally that he had Spina Bifida.
And this is ENTIRELY her choice. It is a difficult decision, you only have to look at some threads in here to see how conflicted these decisions are when it comes down to it, but she feels, rightly or wrongly, that she would have had a termination.
I personally wouldn't do that, at least not with my first 3 DC's, but by the time I was pregnant with my fourth DC, I really wasn't sure whether I would continue with the pregnancy had I been found to have a DC with a disability, as two of my older 3 DC's ARE disabled, and have SN's, and I didn't think I would be able to cope with another DC with disabilities, given the fact that I am also disabled.
OK, it has ended up that my (much loved) DC4 HAS got SN's and disabilities that CAN'T be found out prenatally, and I'm having to cope, but I can't castigate her for her feelings. They are as valid as mine.
I say all this as someone who HAS epilepsy, and has in the past been on Epilim, though NOT whilst pregnant, but has had two pregnancies whilst being on epilepsy medications.
However - do I think that she should have to pay this money back? Well, that's debatable. To be perfectly honest, I feel that these awards of compensation for medical negligence shouldn't all be lumped together as one payment.
I feel that she should have got amount 'A', as a lump sum, as set up costs for ongoing care - with support on finding the best possible adaptations and adapted property for what would become her DS's ongoing needs.
I then feel that she should be given amount 'B' to cover HER lost earnings and earning potential. NOT as a lump sum, but as a monthly or annual amount that would match her previous earnings + wage progression that would likely have been expected for her career. As this is monthly or annual, this should be ongoing (as a top-up when work recommences) until such time as her earnings match that amount. If her earnings never fully recover, then she should continue to get a small amount each month or year.
As her earnings and earning potential would have been directly affected by the NHS's negligence.
I then think there should be amount 'C', paid into a trust, to cover her DS's lost earnings. Taken at an average wage, paid annually and therefore up rated to whatever that year's average wage is. For his lifetime. This will pay for his care as an adult. THIS, and only this, should be repayable in it's entirety if the recipient died before their 18th birthday.
Then amount 'D', paid monthly or annually, to cover his care costs between birth and 18. This then would not need major repayments if he died earlier than expected.
If the majority of these are paid annually or monthly, then there won't be huge repayments due in the event of an earlier than expected demise.
And the set up costs should be unable to be clawed back.
I DO think her choice if house was unsuitable and almost like profiting from her DS's disability at the expense of properly adapting a house for his needs, though...