Admission of liability following failure to diagnose Down's Syndrome and Atrio-Ventricular Septal Defect (AVSD) at Royal Surrey County Hospital | Fieldfisher
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Case Study

Admission of liability following failure to diagnose Down's Syndrome and Atrio-Ventricular Septal Defect (AVSD) at Royal Surrey County Hospital

Jonathan Zimmern
Jonathan Zimmern has received an admission of liability on behalf of Mr and Mrs Smith following failure to diagnose their second child Joanne's Down's Syndrome and Atrio-Ventricular Septal Defect (AVSD), a serious heart condition, at the 20-week anomaly ultrasound scan at Royal Surrey County Hospital. Had these conditions been correctly diagnosed, Mr and Mrs Smith would have opted to terminate the pregnancy

Mrs Smith's second pregnancy was booked at the Royal Surrey County Hospital. Her risk of having a baby with Down's syndrome was higher than normal since she was above the age of 35 and there was almost a 10-year gap between this pregnancy and the birth of her first child. This was ignored however by the hospital who wrongly told her that she was not at an increased risk of having a child with Down's Syndrome, and that no further action was required.

Mrs Smith underwent two 20-week anomaly ultrasound scans at the Royal Surrey County Hospital. Mrs Smith was told that the scan showed normal development and that there were no concerns. In fact, the scans showed significant heart abnormalities which are usually linked with Down's syndrome. These abnormalities were not noticed nor reported by the sonographer.

Mrs Smith went on to give birth to her child abroad. It was immediately obvious following her birth that Joanne had significant abnormalities. Further tests were performed which sadly confirmed that she suffered from Down's syndrome and complete AVSD.

As a result, Joanne has required numerous surgeries to repair her heart. She requires around the clock care and will likely continue to require this level of care for the rest of her life. Had Mr and Mrs Smith been made aware of the significant abnormalities evident on the anomaly scan, they would have asked for further tests to confirm the diagnoses and subsequently terminated the pregnancy.

Mr and Mrs Smith instructed Jonathan Zimmern to bring a 'wrongful birth' claim on their behalf. He instructed an expert sonographer who confirmed that the sonographer had wrongly reported the second 20-week anomaly scan as normal, and that there were in fact severe abnormalities evident on the scan. 

Jonathan wrote a Letter of Claim to the Trust outlining their failures in Mrs Smith's care, and requesting that they admit liability. The Trust denied liability and Jonathan was obliged to issue Court proceedings. Finally, and only after prolonged pressure from Jonathan, the Trust admitted breach of duty. However, they made no admissions as to whether Mrs Smith would have in fact chosen to terminate the pregnancy had the diagnosis been made antenatally.

Jonathan obtained a detailed witness statement from Mrs Smith outlining the reasons why she and her husband would have asked for a termination at this time, and sent this to the Defendant. Following negotiations with the Defendant, Jonathan was able to agree a 95% settlement in relation to liability. 

Further investigations will now be undertaken to value Mr and Mrs Smith's claims.

Contact us

For further information about wrongful birth claims and clinical negligence claims, please call Jonathan Zimmern on 03304606779 or email jonathan.zimmern@fieldfisher.com.

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