Farraj and Farraj v King's Healthcare NHS Trust and Cytogenetic DNA Services (Queen's Bench Division - 17 October 2008)
King's College Healthcare NHS Trust carried out a pre-natal DNA test on a sample provided by Mr and Mrs Farraj, both Jordanians, who carried the gene that causes Beta Thalassaemia Major - an inherited blood disorder that is seriously disabling.
The sample was cultured by Cytogenetic DNA Services (CSL). A report by the Trust stated the foetus would not suffer from the disorder but, in fact, it transpired that the sample had been contaminated by maternal cells and was unreliable. After the birth, the baby was diagnosed with BTM.
The claimants argued that, if they had known of the baby's disorder, Mrs Farraj would have terminated the pregnancy. They alleged that the Trust should have discussed the reliability of the test results with CSL and that CSL should have volunteered to the hospital that the test result might not be reliable.
The defendants argued that there could not be any causation as the claimants would not have aborted the foetus in any event as it would have been against Islamic tenets and Jordanian law to do so. The court did not accept this argument on the basis that abortions have been carried out in Jordan for many years in these sorts of circumstances and that these claimants were seeking the genetic screening to consider whether or not to seek an abortion.
The court held that: (1) the Trust was entitled to rely on the expertise of CSL; (2) CSL should have informed the Trust of doubts about the reliability of the test and the risk of maternal contamination; and (3) that the Trust should have proactively asked for information about the sample and provided a second sample.
Both defendants were found to be liable and it was held that, but for negligence, there would have been time for a termination of the pregnancy. CSL was held more culpable because problems with the sample were within its specialist knowledge and it was found liable for two-thirds of the damages.
At the crux of this case was poor communication between the hospital trust and the laboratory. In this case, both defendants were proceeding on assumptions that all was well unless they were told to the contrary. The ruling suggests that a proactive approach should always be adopted to clarify any uncertainties and this can never be more valid than in a situation where it is known that a patient (or customer of some sort) is relying on the accuracy of information provided to make an important decision. - Katie Costello, BLM Manchester.
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