Tort

Negligence - action for wrongful birth - claimant not counselled on risks of pregnancy at her age - giving birth to Down's syndrome baby - defendants liable

Enright and another v Kwun and another: QBD (Mr Justice Morland): 16 May 2003

The claimants' third child was born with Down's syndrome and a defective heart, which required surgery.

The first claimant, the mother, was 37 at the time both of the child's conception and her birth, and claimed that there was a failure to counsel her about the increased risk at her age of giving birth to a baby with Down's syndrome and to advise her about and arrange for appropriate screening.

She asserted that the first defendant, her general practitioner, and the second defendant's employees', her nominated midwife and an obstetric senior house officer, were guilty of that failure.

She and her husband, the second claimant, claimed damages for wrongful birth.

Gerard McDermott QC and Dr Kevin Naylor (instructed by Sarah Barclay and Company, Blackpool) for the claimants; David Westcott (instructed by Crutes, Newcastle upon Tyne; Hempsons, Manchester) for the defendants Dr Kwun and the Blackpool Victoria Hospital NHS Trust.

Held, allowing the claim on liability, that on the balance of probabilities the first claimant was not given counselling at all in relation to screening tests or amniocentesis, and if she had been, she would have chosen to have an amniocentesis, and on it proving positive, she would have chosen to have the pregnancy terminated.