A British woman whose son was born with Down syndrome after a missed screening has won the right to damages from the NHS.
Edyta Mordel (33) sued the Royal Berkshire NHS Foundation Trust over a failure to detect the condition in her son, Aleksander Mordel, before his birth in January 2015.
She claimed she had asked for a screening and would have undergone further tests to confirm the diagnosis if it had detected signs of Down syndrome.
Both she and her partner, Lukasz Cieciura, said they would have had the baby aborted if they had known he would have the condition.
The trust contended that Ms Mordel had declined the initial test and later regretted her decision.
But, giving judgment at the high court in London on Tuesday, Mr Justice Robert Jay ruled in Ms Mordel’s favour – paving the way for her to receive a payout.
The size of the payout was not mentioned in the ruling but it is likely to be a six-figure sum.
The judge said Ms Mordel had booked for all tests, including the initial screening for Down syndrome, at an appointment in June 2014.
However, when asked by a sonographer the following month if she wanted the screening, she said no.
The sonographer then carried out the rest of the scan without the initial test for Down syndrome.
Aleksander was diagnosed with the condition hours after his birth, and medical records noted his parents were “angry and upset”.
In her evidence to the court at a hearing in July, Ms Mordel said she was sure she always wanted the screening and had booked it for herself.
She said in her witness statement: “I knew someone from work with Down syndrome.
“I saw how difficult his life is and I would not have continued my pregnancy.
“I would not have wanted a disabled child and I would not have wanted my child to suffer the way that disabled people suffer.
“I know how my colleague acts, speaks and what people say about him.
“I wouldn’t want to have brought my child into the world like that.”
Mr Cieciura said in his evidence that if the screening had been carried out and showed a risk of Down syndrome, they would have opted for further tests.
He added: “If, following these further tests, we’d found out that Aleksander had Down syndrome, we would have terminated the pregnancy.
“We would have discussed it and thought that termination was right.
“We would have known that the problems that Aleksander has now he will have for the rest of his life.”
Mr Justice Jay found that Ms Mordel had misunderstood the sonographer’s question when she replied “no” after being asked if she wanted the test.
The judge concluded that both the sonographer and a midwife who conducted a follow-up appointment “failed to discharge their duty” to Ms Mordel by not querying her apparent refusal to have the test, in light of her earlier indication that she wanted it.
He said the trust amended its policy relating to screening following Aleksander’s birth.
‘Tipped the balance’
Ruling in Ms Mordel’s favour, he said: “On balance, and in the light of all the evidence and the inferences to be drawn from it, I have concluded that the claimant probably would have proceeded to invasive testing had she been told that there was a high risk of Down syndrome.
“The claimant was a relatively young mother and I think that at the end of the day the fear that she might be carrying a child with Down syndrome would, at least for her, have tipped the balance.”
The judge added: “Nothing I have said in this judgment should be interpreted as suggesting that the birth of a child with Down syndrome must be seen as unwelcome.
“Some parents have absolute ethical objections to termination of pregnancy, and for them the discussion begins and ends at that point.
“Other parents accept the possibility of having a baby with Down syndrome without a shred of concern or reluctance.
“The state expresses no judgments either way, but it is the policy of the NHS that Down’s screening must be offered to all expectant mothers, the premise being that many would wish to exercise their right to proceed to medical termination in the event of a diagnosis.
“These various wishes and decisions must be and are respected without comment.” – PA