Parents anxious to have case relating to termination heard next week

A couple who claim a healthy pregnancy was terminated as a result of being wrongly advised of a fatal foetal abnormality are very anxious to proceed next week with their actions over the termination, the High Court has heard.

Rebecca Price and Patrick Kiely, with an address in Phibsborough, Dublin, have brought separate cases arising from the termination of their male unborn, whom they named as Christopher Joseph Kiely.

Their counsel Liam Reidy SC told Mr Justice Kevin Cross on Thursday they are very concerned that the hearing proceeds as listed on Tuesday next and the date should not be affected by various discovery matters before the court.

The defendants – Merrion Fetal Health, five of its consultants, the National Maternity Hospital and a laboratory, the Greater Glasgow Health Board – have all offered mediation, the judge was also told.

Mr Justice Cross made certain discovery orders with a view to the case proceeding as scheduled on Tuesday.

In her action, Ms Price (38), claims her baby was due for delivery in September 2019 and, on February 21st 2019, she had a completely normal ultrasound scan at 12 weeks.

She claims she was advised a week later that a non-invasive prenatal test, known as a Harmony test, had been positive for Trisomy 18. [Trisomy 18, also known as Edwards Syndrome, is a rare condition affecting how long a baby may survive, with most babies dying before or shortly after birth].

She claims she underwent a second ultrasound scan which was also completely normal and was then advised by the clinic to undergo Chorionic Villus Sampling (CVS).

Her samples were set to the Glasgow laboratory for testing and she was advised a rapid result from the testing revealed Trisomy 18 had been detected, it is alleged.

During a consultation on March 11th 2019, she claims she was wrongly advised by her consultant on matters including the non-viability of her pregnancy and that her baby had a fatal foetal abnormality. She claims she followed advice to terminate her pregnancy which occurred three days later.

It is claimed the result of a full Karyotype analysis was later furnished to the defendants which revealed the foetus had a normal male Karyotype and did not have Trisomy 18.

The earlier result, it is claimed, was readily explained by the “well-recognised” phenomenon of confined placental mosaicism – meaning the abnormal cells were confined to the placenta.

On learning the result of the full Karyotype, Ms Price claims she suffered intense nervous shock, having realised she had terminated “a normal, healthy baby”.

Moving a discovery application on Thursday, Emily Egan SC, for the clinic defendants and the NMH, said this was a “terribly sad” case.

The explanation for what happened appeared to be that abnormal cells identified in the genetic analysis were confined to the placenta rather than the foetus, she said.

Arising from views from their experts, her side had this week served a notice of indemnity and contribution on the GGHB, counsel said.

Her side’s case centred on the laboratory’s reporting of the results of the testing but, depending on what is in material being sought from the laboratory, it may focus on the analysis carried out, Ms Egan outlined.

Her side’s expert had advised, if a particular category of result was identified from the foetal sample, the laboratory should have attached a caveat to its report to the effect, in the presence of a normal ultrasound, there would be no move to termination without further confirmation.

Discovery of material from the laboratory is necessary before deciding whether that case could be advanced, she said.

Luán Ó Braonáin, for the GGHB, said it was very surprised to have received the notice of indemnity and contribution this week. It is too late in the day for Ms Egan’s side to possibly make a different case against the laboratory and this discovery was being sought just days before the hearing, he argued.

Having heard the sides, Mr Justice Cross ordered the GGHB to make the discovery sought by Monday next and also directed the plaintiffs to discover certain medical records.

With a view to avoiding any adjournment, he said other issues about some €130,000 special damages sought by the plaintiffs, mainly concerning certain work by their solicitors to date, could be addressed by the trial judge.