Settlement of wrongful birth claim against East Cheshire NHS Foundation Trust

Posted: 22/08/2016

The clinical negligence team at Penningtons Manches has settled a claim against East Cheshire NHS Foundation Trust for the mismanagement of a client’s antenatal care and failure to detect a genetic condition, mosaic trisomy 18 (also known as Edwards' syndrome).

When the client became pregnant her pregnancy was considered low risk and she had a number of routine antenatal scans including a dating scan at 11 weeks and an anomaly screening scan at 20 weeks. During the anomaly scan, the sonographer was unable to check the face and stomach of the baby and a further scan was arranged which showed a right cleft lip.

She was referred to the consultant for review and was also referred to the Cleft Lip Specialist team which advised her that there was unlikely to be any long term implications for the baby with a cleft lip, although a longer period of hospitalisation may be required together with help with feeding.

Following this, the pregnancy seemed to proceed without complication and the client went into labour and gave birth a couple of weeks before her due date. Unfortunately at birth, her baby had respiratory distress and was noted to have multiple abnormalities which included extra rudimentary digits on both hands, a club foot and a prominent coccyx, in addition to the cleft lip. The client was advised that her son had Edwards' syndrome and that his prognosis was extremely poor. Although he was transferred for specialist care, treatment was withdrawn as his prognosis was deemed to be poor and he sadly passed away at the age of two weeks.

When the client became pregnant again, she was advised that the cleft lip and extra fluid around the baby were potential signs of a fetal abnormality and, in the circumstances, she should have been offered an amniocentesis to investigate further. This is a medical procedure used in antenatal diagnosis of chromosomal abnormalities.

Penningtons Manches was instructed to investigate a claim against the East Cheshire NHS Foundation Trust and supportive evidence was obtained from a fetal medicine consultant. On the basis of the evidence obtained, a formal letter of claim was submitted. The allegations against the Trust were that, given the evidence of cleft lip, a referral should have been made to a fetal medicine specialist following the anomaly scan. If this had happened, a repeat scanning and amniocentesis would have been offered which would have confirmed the diagnosis of Edwards' syndrome and termination of pregnancy would have been offered and accepted given the known likely outcome for any baby born with this condition. At the same time as serving a letter of claim, a Part 36 offer to settle the case was made on behalf of  the client. 

The NHSLA was instructed to investigate matters on behalf of the Trust and, following its own investigations, a letter of response was served in which a full admission of breach of duty was made. At the same time, the NHSLA accepted the client’s Part 36 offer and offered a formal apology to her for the distress that these events had caused. It also acknowledged that the failings should not have occurred.

Philippa Luscombe, partner in the Penningtons Manches clinical negligence team who supervised the case, comments: “This was an extremely sad case where our client was not driven by obtaining any compensatory award. She just  wanted to investigate and, if appropriate, highlight the errors made by the Trust to ensure that no other family would go through the same devastating experience.

“Edwards' syndrome is a rare condition where the prognosis for a child is extremely poor. Although this would have been an extremely difficult decision for our client to make, it was her evidence that, if she been aware of the high risk of delivering a baby with Edwards' syndrome and the quality of life and outcome for that child, she would not have proceeded with the pregnancy, not least to save her baby from the amount of suffering he endured during his very short life. 

“Given the circumstances of the case, the NHSLA made a full admission of liability at the earliest opportunity and the parties were able to reach an amicable settlement. While no amount of money can change what our client has been through, the sensitive approach taken by the NHSLA and the Trust in this case was appreciated by our client as it led to an early resolution of the case without the need to issue court proceedings. It is hoped that lessons will have been learned to avoid similar failings happening to other families.”

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