Conrad Curry and the team at The Law Office of Conrad Curry recently settled a large claim for damages for wrongful birth for the parents of two young boys born with Fragile X Syndrome.
Wrongful Birth Actions
Fragile X Syndrome is a genetic disorder causing autism spectrum disorder and mental retardation. The syndrome is a hereditary condition affecting the structure of the X chromosome and is passed by parents to their children. Interestingly, males are usually much more profoundly affected than females, but unaffected females can be carriers.
Wrongful birth cases occur in circumstances where it is alleged that the health care provider has deprived would be parents of the opportunity to either avoid conception of a disabled child or to terminate a pregnancy where the foetus is afflicted with a genetic abnormality in circumstances where they would have done so. This can occur in circumstances where the health provider had failed to recommend genetic testing in circumstances where there was a high risk of genetic disorder or had failed to carry out appropriate genetic testing either on the parents when requested because of an existing genetic disorder, on an embryo created through artificial insemination or in utero after abnormal routine early scanning.
In NSW, wrongful birth cases are brought to recover the additional costs of raising the disabled child as the result of their disability, including the cost of medical treatment, allied health and commercial care. There is an unresolved issue as to whether the additional gratuitous care given by the parents is also recoverable. Unfortunately, in New South Wales.
Our Client’s Case
Our client’s uncle was diagnosed with Fragile X Syndrome when she was a child. Neither our client nor her father had exhibited any symptoms associated with the disorder. However, it was recommended that our client undergo genetic testing for carrier status before she contemplated starting her family. When she reached her late teens, she attended her GP and was referred for blood tests and specific genetic testing for fragile X syndrome.
Her bloods were taken and sent to a major genetic testing laboratory to be tested for her carrier status. Testing results reported that she was not a carrier.
Despite the existence of appropriate testing for carrier status, the laboratory used a type of testing which was not capable of diagnosing carrier status. She was wrongly advised of the incorrect testing that her results were normal (a false negative).
Our client met her future husband, and they were later married. Safe in the knowledge that she was not a carrier of Fragile X, she and her husband planned their family and had two sons.
It became apparent during the infancy of their eldest son that he was not meeting developmental milestones. A referral was given to a paediatrician, who ordered genetic testing. Unfortunately, the child was diagnosed with the full mutation of Fragile X Syndrome. Subsequent genetic testing revealed that our client was in fact a carrier. The youngest son was also tested and diagnosed with the disorder.
The boys now suffer significant intellectual and physical disabilities and will never be capable of living independently and their parents’ lives were changed forever.
Our clients commenced proceedings in the Supreme Court of New South Wales against the genetic testing laboratory alleging negligence and breach of contract. Damages were sought for our clients’ mental harm and for the additional costs of raising the two boys as the result of their disabilities, including the additional time and care given over and above that of a child without disability.
Throughout the course of the proceedings, we brought several applications for interim payments for our clients to assist them in providing the necessary treatment and care for their boys in their early years until such time as the full extent of the boys’ disabilities could be assessed for the purposes of their future needs. We also secured a finding on the liability of the genetic laboratory and compensation for each of the parents for the mental harm they suffered.
After a very uncertain and stressful 10 years of litigation for our clients, the matter was finally resolved in June this year in which our clients secured substantial compensation which will enable them to provide all of the care and support the boys to live semi-independent and meaningful lives.
If you have been a victim or suffered loss because of poor medical advice or if you have been a victim of genetic testing errors, please contact us today. You can click here to book an appointment or call us on (02) 4050 0330 to book a no obligation consultation.
