Over past years, our specialised medical negligence team at Drummond Miller has dealt with a number of cases in relation to the misinterpretation of scans undertaken during pregnancy (the purpose of which is to check the well-being of the baby). The consequences of missing any abnormalities can be severe both for the child and the family.

The reality of the situation and the extent to which the family will have to care for the disabled child is not necessarily clear at the very beginning. As the claim is for the parents and not the child (for reasons explained below), one of the difficulties with cases of this nature is that there is only three years from the date of birth, or from when the family ought reasonably to have been aware of the negligence, to raise a court action seeking compensation. Time is therefore quite tight in a period when the family is coming to terms with what has happened and trying to do their best to look after their newborn/disabled child.

Usually when a child is damaged due to medical negligence, the claim is made by or on behalf of the child and does not timebar (i.e. run out of time) until the child's nineteenth birthday. This is because in Scotland, although there is three years to raise a claim for medical negligence, if the claim is that of the child then the three years does not begin to run until his or her sixteenth birthday (when he is deemed to have become an adult). It is, therefore, essential to appreciate that claims for the misinterpretation of scans before birth are the parents' claims and so the three year time limit applies from the date of birth of the child (or from when the family ought reasonably to have been aware of the negligence).

Another hurdle that must be overcome is the question of whether the parents would, in fact, have terminated the pregnancy if the scan had been interpreted accurately and had they been aware of the abnormalities. This is important because there is only a claim if the parents would have been given the option to terminate the pregnancy and would have accepted that termination. This is obviously a very difficult question to raise with any family and for them to answer. Parents can and do feel uncomfortable considering this question and the reality is that they are, by that stage, looking after a child whom they love and care for.

Having said that, the law is clear and if the family would not have accepted a termination (if offered) then there is no claim. The logic behind this is that, if they would not have terminated the pregnancy, then their position would have been same even if the negligence had not occurred and, therefore, there has not been any "loss". The law seeks to put people back into the position they would have been "but for" the negligence (as far as financial compensation ever can) and, if the family would have proceeded with the pregnancy anyway, then the fact that the scan was misinterpreted has, in the eyes of the law, not made any difference to the outcome. This question is, therefore, crucial for a claim of this nature to exist.

If you feel that a scan has been misinterpreted and the result is that you have given birth to a disabled child, in order to find out whether you can raise an action seeking compensation, a solicitor will have to instruct an independent expert to prepare a report.

The first question you will be asked is whether, had the abnormality been detected and you had been offered a termination, would you have taken that option? This is understandably a very difficult and upsetting question to answer, particularly when you are now caring for your son or daughter. The expert instructed (usually an obstetrician with expertise in scanning or an expert sonographer) will then prepare a report on what should have been detected at the scan - usually taken at 20 weeks.

If you are able to overcome the hurdle of negligence, then the next question is what can you actually claim for?

In addition to pain and suffering, the most common claim is for the additional costs of raising the child, attributable to his or her disability. This is again an important point because the law is clear that, despite any negligence, the costs of raising a healthy child cannot be included, i.e. it is only the additional costs in relation to caring for a child with a disability that can be compensated (the logic is presumably that the family would have been caring for a child anyway if the negligence had not occurred and so that cannot be included). It is also worth noting that the claim is for the parents because it is not open to the child to argue that he or she should never have been born, i.e. a claim for wrongful life. These cases, of course, bring into focus many ethical questions but, in terms of the law, it is only the additional costs that can be claimed for. Other matters (heads of claim) can also be included, such as a parent's wage loss as a result of having to give up his or her work to care for the disabled child, additional equipment necessary for the child etc.

Another potential argument in cases of this nature is how one defines a "disability" and whether or not the disability actually relates to the abnormality that was negligently missed. Provided the cost is associated with a "disability", it is probably recoverable (although the law on this particular question is not clear and has not been fully tested in the courts). The extent of the disability required in order to make a claim has been considered by the courts and, in terms of the position in Scotland, the definition in the Children (Scotland) Act 1995 is helpful, i.e. a person is disabled if he/she is chronically sick or disabled or has a mental disorder. In order to define a mental disorder, the Mental Health (Care & Treatment) Scotland Act 2003 is helpful and states that a mental disorder means any mental illness, personality disorder or learning disability. This particular question obviously depends on the facts of the case and there could be some dispute about whether the child has a disability (and whether you can, therefore, claim) depending on the interpretation of "disability" used - on the most general of views, it presumably must be a significant disability.

An example of a recent case in which we acted for a family where a fetal anomaly scan took place at 20 weeks (and was misinterpreted) may be of interest. During a scan, the doctor completed the usual checklist of anatomical structures that he said he had been able to observe as "normal" upon scanning. This included a normal four chamber view of the heart and also the stomach, kidneys and bladder. The scan was reported as normal. At a later date, another scan was performed - at around 30 weeks. Upon scanning, the sonographer was unable to obtain a satisfactory view of the heart and the four chambers. Certain abnormalities were noted and the sonographer suspected a congenital cardiac abnormality (i.e. an abnormality of the heart). Referral was then made for more detailed cardiac scanning from a more specialised unit and it was confirmed that various anatomical structures were abnormal, including the heart and stomach being on the wrong side. By this late stage, the family were not offered a termination. Had the abnormalities been picked up at 20 weeks, given the severity of the abnormalities, a termination would have been offered and the family was clear that they would have accepted. The prognosis for their unborn child was very poor (one of the main reasons they say they would have terminated the pregnancy) and the child was later delivered with significant disabilities requiring significant care and attention.

The claim included a claim for the parent's wage loss as a result of having to care for the child due to his disabilities and also for the additional care provided over and above what would have been required to care for a child without those disabilities. We successfully pursued the claim for the family and settled the claim for a significant sum to reflect the additional care provided and to protect the family in the future when/if the need for further care is required.

This type of case can be very difficult for a number of legal reasons but also because ethical issues do come into play. We would strongly recommend you instruct solicitors with expertise and experience in this area, given the complexities involved. If you feel that you may have a claim of this nature and would like to discuss matters, then please do not hesitate to contact our specialised clinical negligence department.