Mistaken pregnancy termination case to get a ‘hybrid’ hearing

The High Court has approved a hybrid hearing of an action by a couple who claim their unborn child was aborted after they were wrongly told it had a fatal foetal abnormality.

They have , in separate proceedings, taken actions for damages against Dublin private clinic, Merrion Fetal Health, five of its medical consultants and the National Maternity Hospital (NMH), to which the clinic is affiliated.

Scotland's Greater Glasgow Health Board has also been joined as a defendant because its laboratory allegedly carried out some of the testing at the centre of the claims.

The defendants deny any wrongdoing.

The case is listed for at least five days on June 22nd next.

On Tuesday, the couple’s lawyers applied to the court for a hybrid hearing, something that would involve the case being heard with some participants present in court and others participating via video-link.

They also sought orders relating to discovery and other material they say is required to be exchanged and approved before the hearing.

Richard Kean SC, for the couple, told Mr Justice Kevin Cross that "extraordinarily", there had been considerable agreement between the parties in relation to the application. This meant there would be no need for a hearing of the pre-trial matter.

Counsel said the case was one of the “highest sensitivity” and is being completely contested by the defendants. Credibility was in contest and if ever a case was suited for a hybrid hearing, it was this, he said.

Mr Justice Cross noted that, the week after the case begins, all cases can be heard normally.

When he asked if the question of mediation had been examined, he was told by counsel “that boat has sailed”.

In her action, the woman claims she had a scan at 12 weeks of her pregnancy on February 21st, 2019 which showed everything was normal.

A week later, on February 28th, she got a phone call from one of the defendant consultants and was told that a DNA test, the Harmony Test, showed positive for a syndrome known as Trisomy 18 which results in abnormalities in babies.

A further scan was carried out and it was normal but the woman was then advised to undergo a test on the placenta known as Chorionic villus sampling (CVS) which was sent to the Glasgow laboratory.

She was advised on March 8th 2019 this test had revealed Trisomy 18.

She claims her consultant advised the pregnancy was non-viable and there was no point in waiting for a full analysis of the results. This is known as the Karyotype test which examines all the chromosomes inside cells for anything unusual.

She says she relied totally on this advice and the termination was carried out on March 14th 2019 in the clinic.

Subsequently, she claims, the full Karyotype analysis was provided to her and, she says, showed her unborn child did not have Trisomy 18 and was a normal healthy baby boy.

This “discordant result” was readily explained from a well recognised medical phenomenon which the defendants allegedly appeared to have little, if any, knowledge of, she says.