Issue: Failure to diagnose neural tube defects of the foetal spine in utero, resulting in the birth of the baby with spinabifida; i.e. paraplegia and a claim for the additional costs of raising a child with disabilities.
Such claims can be distinguished from “wrongful life” claims and also from “wrongful birth claims” in respect of failed sterilisation, where the issue of legality of termination is in dispute.
The challenge to both sides in these cases is an unfavourable legal precedent with respect to availability of termination on therapeutic grounds. Also of concern is the possibility that a favourable plaintiff judgement may find liability to pay for costs beyond the age of the child’s 18th birthday because, notwithstanding the plaintiff parent’s lack of legal liability to care for the child beyond this age, their natural inclination would be to continue to support the child for the rest of their lives.
Cases we have been involved in have concerned various issues with respect to breach of duty, including:
- whether appropriate information was provided to the mother by the antenatal care provider/s regarding the availability of antenatal ultrasound and other tests, having regard to various risk factors of the mother or at all;
- whether referral for such testing was arranged in a timely manner, so that diagnosis could be made at the optimum time (12 weeks);
- whether appropriate information was provided to the mother regarding the purpose and limitations of antenatal ultrasound scans performed before and after 12 weeks’ gestation;
- whether the ultrasonographer performed the scan with the requisite degree of skill and care to capture appropriate real time images for diagnostic purposes;
- whether the radiologist reported appropriately on the scans; i.e. negligent failure to diagnose abnormality visible on the scans.
Similarly, cases we have been involved in have concerned various issues with respect to “causation”, including:
- whether the parent would have sought to terminate the pregnancy if the abnormality had been diagnosed at the relevant time;
- whether a termination would have been available to the parent given the timing of the alleged failure to diagnose.
Action: We have settled all of our “spina bifida” cases by way of mediation well prior to the hearing date, once all liability evidence has been obtained and sufficient evidence regarding life expectancy and quantum of damages; for various sums having regard to the respective difficulties in proving breach and/or causation