Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) (08 October 2019)

Aleksander Mordel was born to C on 25 January 2015 with Trisomy 21 or Down’s syndrome. He had been her first pregnancy. It is her claim in these proceedings for damages for clinical negligence that, in essence, D missed two opportunities to carry out screening for Down’s syndrome which, if taken, would have led to a termination of the pregnancy. Damages are claimed on the basis of the principles explained in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266. This trial is confined to the issue of liability. [1]

…the facts in the broadest outline are that on 23 June 2014 C attended the community midwife at her GP’s surgery for her booking appointment and “accepted” all six of the standard screening tests, including combined screening. She was booked in for her NT [nuchal translucency] scan on 22nd July. On that date she attended the hospital for the scan to be carried out. There is a dispute between her and the sonographer as to what happened, but it is clear that the latter completed the ultrasound report: “Down’s screening declined”. No NT scan was carried out but the overall condition of the foetus was checked by ultrasound and the due date was ascertained more precisely and then corrected in the records. The second part of the combined test – the taking of blood – was not carried out either, consistent of course with C having declined Down’s screening. On 11 August C returned to see the same midwife and it is common ground that the quadruple test was not offered. C did undergo a foetal abnormality scan at around 20 weeks’ gestation but this was unremarkable. After a Caesarean section Aleksander was delivered safely. [5]

In the light of the parties’ submissions, the issues for my determination may be specified as follows:

(1) (a) Did the sonographer offer Down’s Screening on 22 July 2014; and, if she did, what exactly did she say? (b) did C appear to decline the offer; and, if she did, what exactly did she say?

(2) Did the sonographer discharge her duty to the claimant in terms of obtaining the latter’s informed consent?

(3) If the answer to (1)(a) and (b) is “yes” and (2) is “no”, was it in fact C’s wish not to undergo Down’s screening on this occasion?

(4) Did the midwife discharge her duty to the claimant on 11 August 2014 in not exploring why the combined test had not been carried out?

(5) If the answer to (4) is “no”, would C have informed the midwife pursuant to the exploration that ex hypothesi the latter should have conducted that she wanted Down’s screening (i.e. the quadruple test)?

(6) In the event that the answer to (3) is “no” and/or to (5) is “yes” (on the assumption that either or both of these questions arise), would C have consented to invasive testing and a termination of pregnancy? [6]

judgment for C [154]