Couple sue claiming they were wrongly told unborn child had fatal foetal abnormality

The court has permitted a hybrid hearing, meaning the case will partly be heard with participants in court and part-remotely via video-link

The couple have sued, in separate actions, seeking damages against Dublin private clinic, Merrion Fetal Health, five of its medical consultants and the National Maternity Hospital (pictured) to which the clinic is affiliated. Photo: Billy Higgins

A hybrid hearing has been approved by the High Court for 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 sued, in separate actions, seeking 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 lab 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 22 next.

Today, the couple's lawyers brought an application to the court to permit a hybrid hearing of the action meaning the case would partly be heard with participants present in court and part-remotely via video-link.

They also sought orders relating to discovery and other paperwork 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 it was 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 held normally.

The judge also asked if the question of mediation in the case had been examined. He was told by counsel "that boat has sailed".

The couple's claims

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

A week later, on February 28, she got a phone call from one of the defendant consultants and was told that a DNA test, called 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 again 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. The woman was advised on March 8, 2019, this test revealed Trisomy 18.

She claims her consultant advised the pregnancy was non-viable and that 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 14, 2019, in the clinic.

Subsequently, she claims, the full Karyotype analysis was provided to her which she says showed her unborn child did not have Trisomy 18 and she had 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.