Cape Town - A multi-million-rand court case, in which a woman is up against a prominent southern suburbs hospital after its failure to diagnose her unborn baby’s severe medical conditions, could set a legal precedent in South Africa.

Now five, the child has Down Syndrome and a serious heart condition, and the mother says if his problems had been diagnosed in utero – as they should have been – she would have aborted him and prevented his suffering.

Although the hospital countered before the Western Cape High Court that the mother has no case, because three similar incidents have been unsuccessful previously, lawyers for the woman are adamant that this time is different – because it is the first involving a child born after the advent of the constitution.

The issue now lies in the hands of Judge Elizabeth Baartman and, if the woman succeeds, the case would set a major precedent. She is suing the hospital for R6.5 million in damages on behalf of her son.

The mother has three advocates representing her – Paul Hoffman SC, Pat van den Heever and Natalie Lawrenson – and the case could go all the way to the Constitutional Court.

The woman cannot be identified to protect her child’s identity.

It emerged in court papers that the mother was assessed at the Kingsbury Foetal Assessment Centre in 2007, about six months before she gave birth, by means of an ultrasound nuchal translucency (NT) scan.

The woman alleges the scan was not carried out correctly, and so did not give a reliable reading. If it had been done properly, she and clinic staff would have been alerted to the very high risk of foetal abnormality, particularly chromosomal and cardiac defects. She would have aborted the foetus “then and there”.

Six months later the baby was born with Down Syndrome and serious, permanent heart defects.

The clinic has countered that the court should dismiss the mother’s claim because it is not permissible in South African law, and “lacks the necessary averments to sustain an action”.

In court this week, Graham van der Spuy, for the clinic, argued that the type of claim, known as a wrongful life action, was not recognised in South African law.

He said the legal effect and implications of the claim required the court to find that it would be better for the child not to have the “unquantifiable blessing of life”, than to have such a life, even though it was marred.

Van der Spuy also submitted that the courts had decided previously on such claims and that those decisions were binding on the court. The papers also did not contain any allegations that the clinic had assumed a duty of care towards the child while still a foetus.

Arguing for the mother, however, Hoffman said her claim was different from the previous ones, because the children in those cases were born before the constitutional dispensation came into operation.

At that time the courts were not able to examine the parameters of the duty of care owed to children within the context of the bill of rights, he said.

There was now a “completely different value system” in South Africa’s new order.

Hoffman submitted that there were various local and international legal commentators who supported the recognition of such a claim.

The court must now decide whether or not the action can proceed.

Judge Baartman reserved judgment.

Weekend Argus