A court has ruled that a mother, representing her child, can now apply to claim damages for alleged negligent prenatal misdiagnosis of her child.
The Constitutional Court on Thursday has ordered the high court to hear a claim involving a family seeking damages against a foetal assessment clinic.
The high court had initially dismissed the case, which had been brought by the mother of a child born with Down’s syndrome, on the child’s behalf, against the Fetal Assessment Centre in Cape Town.
The mother is known only as H, according to the court’s order, to protect her child’s identity.
She had visited the centre in 2008 for a nuchal translucency scan – an assessment of the fetal risk of Down’s syndrome – during the early stages of her pregnancy, according to court documents.
H argues that the centre failed to interpret the scan correctly and negligently failed to warn her of the high risk of her child being born with Down’s syndrome.
A United States doctors’ website states that Down’s syndrome is a genetic disorder that causes “lifelong intellectual disability and developmental delays, and in some causes health problems”. It is the most common genetic chromosomal disorder and the biggest cause of learning disabilities in children.
H’s claim on behalf of her son is for “special damages for past and future medical expenses and general damages for disability and loss of amenities of life”.
According to the Constitutional Court judgment, South African law “does not recognise a child’s delictual claim for damages arising from a negligent prenatal misdiagnosis in relation to congenital medical conditions or disabilities”.
Although the claim has been termed “as one for wrongful life”, the legal issue is whether a child should be legally allowed to seek restitution for a life with disability, the judgment document stated.
The Constitutional Court called the order by the high court to dismiss this case unwarranted and replaced the high court’s decision with an order that gives the mother (on her child’s behalf) 14 days to adjust “the particulars of claim”.
“It must be emphasised that all this judgment determines is that a child’s claim may potentially be found to exist. Whether it does exist and in what form, needs to be decided by the high court,” according to the judgment.