Mother to sue board over cystic fibrosis test 'blunder'

Published on Wednesday 1 July 2009 21:53

A PREGNANT woman who was wrongly told she had tested negative for cystic fibrosis is claiming £100,000 damages for alleged medical negligence.

She said she would have had an abortion if she had known her unborn child had cystic fibrosis.

The 41-year-old from Edinburgh gave birth to a son who was found to have the genetic disease, and she raised the damages claim against Lothian Health Board.

The board tried to have the action dismissed because it did not employ the scientist who carried out the analysis. Yesterday, however, a judge ruled that she should be allowed to take the case to a full hearing.

The Court of Session in Edinburgh was told that the woman had been referred to the Eastern General Hospital, Edinburgh, in July 1994 for ante-natal care. She was sent a leaflet about cystic fibrosis testing.

It explained that one person in 25 in Britain had a single cystic fibrosis gene which was harmless. If a man and a woman each carried the gene, there was a one-in-four chance that their baby would have the disease.

Parents were offered testing, by supplying a mouthwash sample. The leaflet said if either parent was found to carry a gene further tests would be carried out. It also stated: "If the result does show that the baby is going to have the disease, you may wish to consider termination."

In her action, the woman says she provided a mouthwash sample and was told it was negative. Her son was born in February 1995. She claims her sample had actually shown the appearance of a faint positive result, but it had been poor-quality and the scientist carrying out the test ought to have asked for a repeat sample.

Lothian Health Board said screening tests at the Eastern General at that time were carried out as part of a research study by the human genetics unit of Edinburgh University, and the scientist involved had been an employee of the university.

The board argued that the claim against it should be dismissed because it was not responsible for any acts or omissions on the part of the scientist. She could sue the university.

The woman's lawyers submitted that the obligation of an NHS board went beyond arranging treatment, and there were strong policy reasons for holding that a hospital which offered treatment to a patient, accepted responsibility for the care with which it was given, regardless of the status of the person engaged to deliver the treatment.

Lady Stacey said she was satisfied that the case should be allowed to proceed. It was clear that other expectant mothers in Edinburgh had been offered the same test and they had the analysis carried out by a board employee, she said.

"There is nothing in the leaflet which indicates that the analysis would be carried out by anybody other than the hospital. It is plain that, should the test prove positive, the hospital would then arrange for further testing and information to be given to the patient.

"It would, in my opinion, be open to a patient to think the hospital, in offering a test, was offering to analyse any samples given," said Lady Stacey.