The BBC recently reported a new blood test to screen for Down’s syndrome. The new test, which looks at fragments of foetal DNA in the mother’s blood, could be used to replace controversial amniocentesis testing, which is currently used by the NHS. With amniocentesis testing, a needle is used to extract a sample of amniotic fluid, which surrounds the foetus. One in every 200 women loses their baby following this invasive procedure, so a safer alternative would be welcomed.
Testing for birth defects and deciding what to do if something abnormal is identified is, of course, very challenging. Missed birth defects may give rise to a particular type of clinical negligence claim called wrongful birth. This un-sensitive term is commonly used to describe two main situations:
- failed sterilisation of a male or female leading to pregnancy; or
- when a parent has been deprived of the opportunity to terminate a pregnancy because of either a failure to diagnose a birth defect or to pass this information onto the parents.
This blog focuses on the second situation.
It is important to stress that not all birth defects can be identified prior to delivery; however, there are particular tests (screening and diagnostic) that can identify specific defects, for example:
- Spina Bifida;
- Down’s Syndrome;
- Cystic Fibrosis; and
- Sickle Cell Anaemia.
These types of birth defects are missed. Each year, 750 babies are born with Down’s syndrome in the UK. Of course, not all of these will meet the criteria for a wrongful birth claim, but some will. Testing options should be thoroughly discussed with parents but especially so in high risk pregnancies where a mother’s age, disability or ethnic background may be relevant. It goes without saying that test results, particularly those that identify any abnormality, should always be discussed with parents.
In situations where tests have not been carried out when they should, tests not properly performed, interpreted or followed up, and/or information and the choice to terminate a pregnancy is not given to a parent, a wrongful birth claim may arise. This type of claim focuses on providing support to the parent and child to help them cope with the extra burden of a birth defect/disability. The law assess this extra burden by comparison to the needs of a child without a birth defect.
Life expectancy will also be taken into account because, with severe birth defects, care needs are likely to be life long. The cost of such care means than wrongful birth claims are often very high value, with settlements in the millions of pounds category. With these claims, parents may also receive smaller awards for their own pain, suffering, emotional and psychological distress.
If you think you, or your child, may have suffered an injury as a result of negligent medical treatment and would like to speak with a member of the Lester Morrill clinical negligence team, please call on 0113 245 8549 or contact us by email at firstname.lastname@example.org .