Shaw v South Tees Hospitals NHS Foundation Trust [2019] EWHC 2280 (QB) (30 July 2019)

C is the mother of a daughter E who was born on 14 October 2014. Very sadly E was subsequently diagnosed with Aicardi Syndrome, a rare genetic disorder that occurs almost exclusively in females. It is characterised by agenesis of the corpus collosum (“ACC”)… [1]

C had a fetal anomaly scan on 2 June 2014 at 21 + 6 weeks gestation. This was carried out by a consultant in obstetrics and fetal medicine at reported that the scan showed normal development of the brain structures in all respects. [2]

As a result of the Aicardi Syndrome E suffers from microcephaly, severe learning difficulties, visual abnormalities and seizures. The claim is brought by her mother for damages to cover the [additional] costs of bringing up Emily which are going to be considerably greater than those of bringing up a healthy child. [3]

The issue at this stage is therefore whether D’s confirmation that the scan showed normal brain structure development was negligent because she did not see enough evidence of normal development of the cavum septum pellucidum. C submitted that the scan D carried out could not be interpreted as showing sufficiently clear images of the CSP for a sonographer to be reasonably confident of confirming its existence, and that D should have discussed this with the C and recommended a further scan. [6]

In 2010 the NHS introduced a Fetal Anomaly Screening Programme (“FASP”) in order to produce a national screening programme and improve standards. Fetal anomaly screening was not new but lacked coordination and uniformity. The aims and objective of the FASP was stated to be to ensure access to a uniform screening programme which conforms to an agreed level of quality. [10]

…the scan must be carried out to a competent standard and with care. If the sonographer does this, and decides that the scan has sufficient clarity to see all the relevant structures, it would not be negligent to sign off the screening as complete. Only if her judgment that all the features were present is one which no reasonably competent practitioner would reach is negligence proved…. Does the scan enable the sonographer to tick the box stating that she has seen all the relevant structures or should she have put a question mark. [44]

C has not succeeded in proving that D is liable in negligence… [55]