Pretoria - The parents of a child with Down Syndrome – now aged 9 – failed in their second attempt to hold a gynaecologist liable for the fact that their daughter was born with the condition.
The Roodepoort couple earlier lost their multimillion-rand damages claim against the gynaecologist after the Gauteng High Court, Pretoria, at the time said that the specialist could not be held responsible.
The parents, however, maintained that they were entitled to the damages they incurred in having to raise, maintain and care for their daughter, only identified as M.
They said as she had Down Syndrome, it was “not normal” and they would have to care for her into adulthood.
The parents said that if the specialist had done all the necessary tests during the pregnancy and explained their options to them, they would have opted to abort the foetus.
The couple, who cannot be identified to protect their daughter, said they were in utter shock when they were told, after the birth, that the child had Down Syndrome.
They placed the blame squarely on the gynaecologist, whom they said was negligent for failing to detect, during prenatal screening, that the 28-year-old mother was in fact carrying a Down Syndrome baby.
The couple appealed against the earlier ruling in which their claim was turned down. But a full Bench (three judges) still maintained that the specialist could not be held responsible.
The gynaecologist said he had done the necessary tests and told the parents that they showed that there was a low risk of the unborn child having Down Syndrome.
The couple felt they were not given adequate information during the pregnancy regarding genetic screening for Down Syndrome. They also complained that the doctor did not do the proper tests to detect any abnormality with the foetus.
Judge Vivian Tlhapi earlier said in her judgment that there was always a possibility of a woman giving birth to a child with an irreversible congenital or genetic disorder. In certain cases the risk increased as the woman grew older. But in this case the mother was still young.
Screening and diagnostic tests had been developed to assist in identifying these disorders in women at risk of giving birth to a child with abnormalities. Therefore, the judge said, antenatal management was important and it had become common practice to make these tests available to women in the early stages of their pregnancy.
The mother testified that she went to the specialist in April 2011, and he did an ultrasound and all seemed well.
She returned the following month when the specialist said he would, among other things, check for Down Syndrome by doing a scan and by measuring the thickness of the baby's neck.
But this could not be done on that occasion as the baby was not lying in the correct position. The mother was told to return a few days later, as this was the window period within which he could detect the measurement. This test could also not be done the second time as the baby was again lying in the wrong position.
Blood tests were done the following month, but the mother said the results were not discussed with her.
The mother said she was in a state of shock when the baby was born in November 2011 with Down Syndrome. She said one knew about these things, but “you never realised it could happen to you”.
The parents said that all in all, the gynaecologist had been negligent in his ante-natal care towards the mother.
In his appeal judgment, Judge Natvarlal Ranchod said the methods to pick up Down Syndrome were fairly complex. The initial methods used to pick up whether the unborn baby may suffer from Down Syndrome were screening, as opposed to diagnostic tests.
A screening test provided for an odds ratio that the unborn baby may suffer from the condition, but it was not guaranteed that the foetus did not have it. Only if the screening tests indicated the possibility of Down Syndrome was the higher risk diagnostic test recommended.
The mother, in this case, did not opt for the diagnostic test.
Pretoria News