Claimant brings successful wrongful birth claim against NHS Trust

Claimant brings successful wrongful birth claim after practitioners fail to appreciate that the fetus was at risk of suffering from microcephaly.

The claimant brought a clinical negligence claim against the defendant NHS trust alleging that they had been negligent for failing to recognise features on ultrasound scans which suggested that there was a risk of the fetus suffering from microcephaly which could have resulted in severe disability.

The claimant’s child was profoundly physically and cognitively disabled. The exact cause of the disabilities was not clear but she had been diagnosed with microcephaly which is known can result in severe disabilities.

The claimant alleged that the scans showed various abnormalities such as a small fetal head circumference and decrease in growth rate. She argued that these signs, amongst others, were indicative of a risk of microcephaly and further investigations ought to have been carried out. Had she been aware of the risk of microcephaly and the substantial risk of severe abnormalities associated with it then she would have terminated the pregnancy.

She relied upon the expert evidence of a consultant gynaecologist and obstetrician.

The defendant relied upon evidence from a consultant in feto-maternal medicine who maintained that there was no or insufficient evidence that the fetus was at risk of suffering from microcephaly.

The court preferred the claimant’s expert evidence. Baker J found his opinions to be logically based. He found the defendant’s expert to be unimpressive and that the expert’s conclusions were inconsistent with the fetal scan measurements and reports on a number of important issues. His evidence failed to take into account the combination of factors present in the scans. The court went further and found that his concussions lacked a sufficiently logical and rational basis.

On that basis, it was the scans sufficient evidence of a risk of microcephaly that no reasonable clinician would have failed to appreciate. Further investigation ought to have been carried out. As such, the claim succeeded.

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