An ongoing case of ‘wrongful birth’ in the High Court in London received widespread publicity, even across the world. There will probably be more controversial publicity when a Judge has decided if there had been any fault on the part of the Royal Berkshire Hospital.
The case is likely to raise strong emotions because the Claimant has to prove, effectively, that they would have terminated the pregnancy if the hospital had not been negligent. This is known as a ‘wrongful birth’ case.
In these circumstances a Claimant (usually the mother of a child with a disability) claims that a failure to spot and report a disability during the pregnancy was negligent. This is because it prevented them from having the option of a medical termination of that pregnancy.
The consequence being that they have to carry the additional costs associated with the disability of that child.
If the Judge decides there was negligence leading to the wrongful birth of Aleksander Mordel Cieciura, then Edyta Mordel, his mother, will receive compensation for the additional costs of raising a child with Down’s Syndrome (or Trisomy 21/T21 as it’s also called).
People are born with Down’s Syndrome because of their genes. It is usually because of an extra copy of at least part of Chromosome 21 in their cells. It causes some level of learning disability, although these days’ people with Down’s Syndrome can live full and rewarding lives.
The newspaper articles may have misreported or misunderstood what was said in Court. This is because there is some confusion between what tests are used when screening for a condition and what tests are used to diagnose that condition.
Clodagh Bradley QC, Ms Mordel’s barrister, says that the key error relates to a screening test. The Daily Mail article states that the Hospital’s barristers said “it was relatively common for expectant mothers to decline screening when they learned it carried a miscarriage risk of up to one in 50”.
The NHS has clear guidelines for antenatal screening for Down’s Syndrome. The NHS say that the “screening test cannot harm you or the baby”, but that diagnostic tests do have a risk of causing a miscarriage. Both Chorionic Villus Sampling (CVS) and Amniocentesis have a risk of miscarriage of “1 out of every 100 women” or 1%.
The newspaper articles seem to confuse the risks of screening tests with diagnostic test. It is unhelpful to all expectant mothers to read these articles and think that the screening test puts them at risk of a miscarriage; it does not.
Successful claims for wrongful birth have been made where negligent errors have occurred in a number of both screening tests and diagnostic tests. These errors can occur in a range of conditions that would lead to the foetus being born with significant disabilities. The NHS can screen for chromosomal syndromes including Edwards’ and Patau. They can also screen for a range of genetic mutations within the DNA including Thalassemias and Sickle Cell.
There are diagnostic tests for a large number of genes. Dr Darren Conway was involved in a successful claim that involved a negligent error in testing for Fragile X syndrome. In that case compensation was agreed at £1.8m.
Dr Darren Conway PhD is a solicitor in the Medical Negligence Department here at Sternberg Reed, specialising in all aspects of Medical Negligence and Clinical Negligence Claims. If you want to find out more and see how Darren and Sternberg Reed could help you, click HERE
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This article does not constitute legal advice and you should contact us directly if you are facing a similar situation.