Abstract
The facts
The Claimant was a 39-year-old woman. She had two children but had previously undergone five terminations and suffered recurrent miscarriages. She discovered that she was pregnant in September 2004. The expected date of delivery was 15 April 2005.
At about 17 weeks, she underwent the ‘quadruple test’ which indicated a low risk of Down's syndrome at 1 in 14,000. She then underwent a routine anomaly scan at 22 weeks. The sonographer identified one abnormality – a two vessel cord. No other abnormalities were recorded. He recorded that the head, brain, face, spine, neck and skin, heart, abdominal wall, gastro-intestinal tract, kidneys and bladder, extremities and skeleton appeared normal. There was no record of any specific investigation for overlapping fingers or rocker-bottomed feet.
The risk of Trisomy 18 was adjusted to 1 in 156 but the Claimant was not advised of this. The sonographer advised the Claimant there was a slightly increased risk of giving birth to a baby with Down's syndrome but did not mention any other risks. In particular, he did not mention the increased risk of Trisomy 18 or advise further testing to confirm or exclude the diagnosis of Trisomy 18. He advised against an amniocentesis because the risk of Down's syndrome was low and the procedure would increase the risk of miscarriage in a patient with a previous history of miscarriage. The Claimant was reassured by the result of her quadruple test that the risk of Down's syndrome was low. She continued in her pregnancy, believing that in likelihood her baby would be born healthy.
No other abnormalities were identified on subsequent scans.
In February 2005, she travelled to the USA where she attended a local hospital suffering from headaches. She underwent a scan on 15 March 2005. The scan identified abnormalities characteristic of Trisomy 18; including rocker-bottomed feet, ventricular megaly, a two vessel cord and possible transposition of the great vessels. Amniocentesis was performed on 24 March 2005 and confirmed Trisomy 18. The Claimant was advised that her baby had a significant disability, would probably be born dead and would in any event not survive vaginal delivery.
On 8 April 2005, the Claimant gave birth to her baby, M, by Caesarean section.
M was initially admitted to the Special Care Baby Unit and then returned with her parents to England, where she was treated in three different hospitals. She was dependent on life support and on several occasions needed resuscitation. The treating clinicians applied to the High Court to withdraw life-prolonging treatment. The Claimant resisted the application. She felt strongly that the destiny of her baby should be in the hands of God and that a decision to let her die, should not be made by any human agency. However, the clinicians' application was successful. M's life support was withdrawn and M died on 16 August 2005.
Trisomy 18 (Edwards' syndrome)
There are 23 pairs of human chromosomes. In a relatively unusual genetic disorder, the 18th pair of chromosomes has an extra chromosome. The condition is known as Trisomy 18 or Edwards' syndrome.
The condition affects somewhere between 1 in 6000 and 1 in 8000 live births. Most of the live births are female infants. However, 95% of the fetuses die before birth. Infants born with Trisomy 18 have only a 5% chance of surviving for one year.
The condition affects a wide range of organs. It can be associated with developmental delay, microcephaly (small head), congenital heart defects, clenched hands with overlapping fingers, rocker-bottomed feet, defects of the digestive and urinary tracts and defects of the genitals. A two (rather than three) vessel cord is one of the possible indicators of Trisomy 18.
The condition is often diagnosed during a 22-week anomaly scan, when some anomalies are normally visible. These would normally include overlapping fingers and rocker-bottomed feet, if present. After 22 weeks, the abnormalities are more difficult to detect by scan. Testing by amniocentesis can confirm the diagnosis.
Breach of Duty
Expert evidence was obtained from a sonographer. Although no recording of the anomaly scan was available, it was the sonographer's evidence that the finding of a two vessel cord should have raised the index of suspicion that the fetus had Trisomy 18 and led to a more detailed examination. A more detailed examination would have detected the abnormalities of rocker-bottomed feet, an abnormal angle of the right foot, abnormalities of the hands, two muscular VSDs and abnormally positioned renal tissue. The Claimant should then have been advised that her baby had abnormalities indicative of Trisomy 18 and have been offered amniocentesis to confirm or exclude the diagnosis. The advice that the only apparent risk was an increased chance of Down's syndrome was wrong.
Causation
The Claimant's evidence was that, had she been advised of the increased risk of her baby having Trisomy 18, she would have elected for further testing (which is what she did in the USA when advised of abnormalities seen on the ultrasound). She would have terminated the pregnancy in the knowledge that it was unlikely that her baby would survive until birth and that, if in fact born alive, would have no chance of long-term survival. She argued that her strong belief in the sanctity of life (which was the ground of her challenge to the High Court application to withdraw life support) was consistent with her willingness to terminate a pregnancy. In her view, different principles apply to a fetus in the early stages of pregnancy and a child once born.
Losses
Claimant's loss of autonomy: £17,750
This was an award for being deprived of the opportunity of deciding to end the pregnancy. The award for this head of loss made in Rees v Darlington in 2003 was £15,000. Increased in line with inflation, an award was claimed at £17,750.
The claim for special damages comprised:
£2358 £266 £280
£20,654
Pre-action correspondence
In response to a letter of claim, breach of duty was denied. The Defendants alleged that the scan was carried out by an experienced sonographer, who was a clinical fellow in fetal-maternal medicine. He looked carefully for anomalies to exclude chromosomal problems or genetic syndromes and, having made a finding of a two vessel cord (which raised the possibility of Trisomy 18), specifically looked for other anomalies. He undertook an exceptionally thorough review of the anomaly scan and recorded ‘no other markers of aneuploidy’. He re-calculated the risk of Trisomy 18 to 1 in 156, based on the Claimant's age, screening results and finding of the two vessel cord.
Further, the Trust alleged that the Claimant was advised of the increased risk of Trisomy 18, properly counselled that a definitive diagnosis could only be made on the bases of recommended amniocentesis and that the risk was fully explained. The Trust alleged that the Claimant declined the opportunity for definitive diagnosis to be made.
The Defendants said that they would ‘vigorously defend’ any legal proceedings. Proceedings were issued and served.
Settlement
At issue, the Claimant made a Part 36 offer to accept £18,500. Before service of a Defence, the Defendants' offered to settle the claim for £13,500. After negotiation, an increased offer of £15,750 was accepted. The award represented 76% of the sum claim. The reduction reflected the risk of a reduction of special damages and the more significant risk of failing to establish breach of duty and causation at trial.