Personal injury news

Mother of Down's Syndrome baby loses claim against doctors for wrongful birth

A woman who blamed doctors after her son was born with serious disabilities will go without a penny in compensation after a High Court ruling today.

Rana Al Hamwi, 33, of Neasden, north London, claimed she was the victim of a 'wrongful birth'. She argued that a delayed GP's referral letter and bad advice from a hospital doctor robbed her of the chance of having her pregnancy terminated.

Syrian-born Mrs Al Hamwi has an extensive history of birth defects in her family - seven of her relatives had been born mentally and physically impaired - and she was devastated when her son, Ahamad - now aged five - was born with the grave disabilities all too familiar to her family in January 2001.

Before the birth, she thought the congenital shadow that had afflicted her family was Down's Syndrome, but later investigations showed Ahamad's disabilities resulted from an 'unbalanced translocation of chromosomes'.

Mrs Al Hamwi sued the North West London Hospitals NHS Trust and GP, Dr Fiona Johnston - then practising in Willesden, north London, but now working at The Medical Centre, Sundridge, near Sevenoaks, Kent - for substantial damages to cover the costs of bringing up a disabled child.

But she was left heartbroken when judge, Mr Justice Simon, dashed her compensation hopes after ruling that the advice she received at the Central Middlesex Hospital before Ahamad's birth had been 'balanced and accurate'.

Although Dr Johnston admitted 'breach of duty' - in that the letter referring Mrs Al Hamwi to the hospital had been inexplicably delayed - the judge found that had not caused Ahamad's wrongful birth or made any difference to the tragic outcome.

The court heard the expectant mum went to see Dr Johnston in June 2000 when she was just over 11 weeks pregnant and told the GP of her mistaken belief that Down's Syndrome ran in her family. Dr Johnston told her she would make 'an early referral' to hospital for ante-natal advice and screening.

Mrs Al Hamwi was told she should expect to hear from the hospital within two weeks, but the judge said that, for unexplained reasons, the hospital referral letter was not sent.

As the weeks passed and she became increasingly anxious, Mrs Al Hamwi went to the hospital herself where she discovered the referral letter had not arrived. She went back to the GP's surgery and, when the error was discoverred, Dr Johnston sent an urgent referral letter to the hospital by fax on August 4.

Dr Johnston accepted she was 'at fault' in that the referral letter contained an innacuracy. It stated that Mrs Al Hamwi had no children, whereas she already had one son, said the judge.

She was seen by a consultant at the Central Middlesex Hospital on August 16 2000, but by that time she was more than 17 weeks pregnant.

Sally Smith QC, for Mrs Al Hamwi, argued the delayed referral letter had robbed her of the opportunity of diagnostic tests which would have pinpointed Ahamad's congenital disabilities. Had that been done, she would have opted for a termination, she said.

She also claimed the hospital consultant had given her inaccurate and unbalanced advice through an interpreter about the risks of undergoing an amniocentesis - a test used for diagnosing foetal abormalities.

However, dismissing her damages claim, Mr Justice Simon ruled: 'I find that Mrs Al Hamwi has failed to prove that the birth of her child and consequent loss was caused by a breach of duty by the Hospital'.

Although Mrs Al Hamwi might have been 'confused' about the advice she received, the judge said the consultant had 'imparted accurate information in a balanced way'.

Although Dr Johnston admitted 'breach of duty' in relation to the four-week delay in sending the referral letter, the judge said that, even had it been sent promptly, Mrs Al Hamwi would have received the same advice at the hospital and the outcome would probably have been the same.

The judge added that Mrs Al Hamwi may have chosen not to have an amniocentesis test because of the small risk to the foetus or out of understandable concern that, if the test proved positive, she would have to make an agonising decision whether or not to terminate the pregnancy.

She may also have felt under 'some form of familial pressure' and her beliefs as a devout Muslim may also have made her reluctant to undergo a termination more than 120 days after conception, the judge observed.

But he nevertheless concluded Mrs Al Hamwi's compensation claim had to be dismissed.

Source: http://www.butterworths.co.uk