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Today in history… first payouts in ‘thalidomide’ scandal

12:00am & Lifestyle

First steps to compensate UK victims of banned drug ‘thalidomide’ were announced 50 years ago today, on February 19th, 1968.

Developed by a German pharmaceutical company, thalidomide was prescribed to pregnant women to alleviate morning sickness in the early months of pregnancy. In the UK, Australia and New Zealand it was marketed under the brand name ‘Distaval’ by British pharmaceutical business The Distillers Company (Biochemicals) Ltd.

It’s advertising claimed that: “Distaval can be given with complete safety to pregnant women and nursing mothers without adverse effect on mother or child... Outstandingly safe Distaval has been prescribed for nearly three years in this country.” It was also manufactured under licence and distributed by many other companies in 46 countries and under many different brand names.

But thalidomide was far from safe. In the late 1950s doctors noticed an increase in the number of babies born with physical deformities, especially ‘phocomelia’ – missing or undeveloped arms, legs, hands or feet. The connection was soon made between these abnormal births and women who had taken thalidomide during pregnancy.

In the UK the drug was available from 1958 but taken off the market when the link to birth deformities was confirmed in late 1961. It was estimated that more than 400 UK children had been born with deformities due to thalidomide, but the number could have been higher as some of the symptoms – including deformities of internal organs and mental deficiencies – were not so noticeable in babies and infants.

Worldwide it was estimated that more than 8,000 women who took thalidomide gave birth to children with deformities. In some countries the drug was still widely available into the 1970s, despite the growing mountain of evidence linking it to birth defects.

Fifty years ago today there was an outcome in the first UK legal cases following the thalidomide scandal. Under a settlement agreed in the High Court, 62 ‘thalidomide children’ were to be awarded damages, but many of the families involved were far from satisfied. According to the agreement, The Distillers Company would pay 40% of what the families were claiming if their court actions were successful, but even those payments were conditional on allegations of negligence being withdrawn.

Legal experts estimated each of the 62 children would receive between £5,000 and £45,000 depending on the extent of their disability, meaning a total bill of up to £1.5m for The Distillers Company. The judge in the case, Mr Justice Hinchcliffe, described the arrangement as “fair and just”, adding that: “It is in the interests of the infant plaintiffs and their parents, and it reflects great credit on all those who have taken part in negotiating it.”

The barrister representing the 62 children, Desmond Ackner QC, was less enthusiastic, but was forced to concede that his clients faced an uphill struggle in pursuing their legal claim and ultimately might have “failed to recover a pennypiece”. Their difficulty was in proving that Distillers, as a distributor of the drug, had failed in its duty of care to the unborn children ­– something for which there was no legal precedent in English law.

Distillers also said it was considering providing “a substantial sum” to compensate thalidomide children whose families had not yet made a claim, in line with the terms of the court agreement. But if it hoped that would make the scandal go away, it was wrong. Instead Distillers came under a barrage of pressure to act from the public and the national press. In 1973 it agreed to provide a trust fund and lump sum payouts to all of the children, the money to be distributed by the newly established Thalidomide Trust.

Distillers was later taken over by Diageo Plc and in 2005 it substantially increased the amount of compensation available to thalidomide victims. The UK government also admitted some liability and in 2009 gave a grant of £20m. to be distributed through the Thalidomide Trust.

Contrary to early expectations, most thalidomide children showed remarkable resilience in overcoming their disabilities, adapting to lead full and active lives. Some have excelled in disability sport and other areas of life. They include Lorraine Mercer, awarded an MBE for her work with the Riding for the Disabled Association, and renowned German bass-baritone singer Thomas Quasthoff.

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