In August 2006, the family’s third child died as a result of an inherited muscle wasting condition called Spinal Muscular Atrophy (SMA) (although this went unrecognised at the time).
The baby was just four months old. Following his untimely death, genetic testing was carried out at the John Radcliffe Hospital in Oxford to establish the precise cause of his demise and to counsel the parents on the potential risks of future pregnancies.
The relevant material was obtained but the analysis of the results was carried out on the false assumption that the parents were first cousins. Mistakenly, it was concluded that the genetic results did not indicate that the deceased child had SMA when in fact he did.
In April 2007, the parents were informed that: “All these tests do not exclude the possibility of it still being Spinal Muscular Atrophy or SMARDI 100% but it makes it very unlikely.”
Crucially they were told that there was only a 1 in 4 chance that a subsequent baby would be born with a similar condition and that there was no available diagnostic testing pre-natally. Obviously, the parents were very comforted by this advice and decided
to try for another child.
The following pregnancy was difficult for the mother as she was very worried (there being no genetic testing) but ultimately trusted the geneticist’s advice. Their son was born in the Summer of 2008 and it soon became clear that he was suffering from a similar condition to his deceased brother. Genetic testing performed at another hospital confirmed that he suffered from SMA.
The Oxford Radcliffe Hospital immediately instituted an inquiry and quickly established that SMA was present in the younger, deceased child and it was noted in a letter to the parents that: “Potentially with further investigations, the diagnosis of SMA would have been confirmed, and we could then have arranged for you to be seen to discuss pre-implantation genetic diagnosis prior to another pregnancy.”
Sadly, the youngest child died on 23 February 2009.
A claim was madeon behalf of the family by solicitor Paul McNeil, for the “wrongful birth” of the youngest child on the basis of negligence as his SMA would have been diagnosed by pre genetic testing. In addition a claim was made for the psychiatric damage suffered by both parents.
Soon after we were instructed, Oxford Radcliffe Hospitals NHS Trust admitted liability and the only issue was the amount of damages. The mother in particular had suffered very significantly and her condition at the time of the settlement was characterised by anxiety, depression, anhedonia, disruption of sleep, appetite, libido and reduced mental and physical energy. She suffered from a major depressive episode of moderate severity and had not been able to return to work. Her prognosis was guarded.
Proceedings were issued on 7 February 2012 and the case was eventually settled for a six figure sum in March 2012.
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