JS v Lothian Health Board [2009] CSOH 97
In July 1994 JS and her husband underwent screening to ascertain
whether they were carriers of the cystic fibrosis gene. JS was
advised that the result of the screening was negative, but her son
was subsequently born with cystic fibrosis. She claimed that she
would have terminated the pregnancy if she had been told that the
foetus had cystic fibrosis, and sued Lothian Health Board alleging
negligence because the screening was not carried out properly.
As part of her antenatal care JS was referred by her GP to a
Consultant Obstetrician at the Eastern General Hospital in
Edinburgh. In common with other women she was sent a leaflet
entitled "Cystic Fibrosis Carrier Testing for Couples". The leaflet
gave no indication of its author, and it explained that the
screening was by means of a mouthwash. If JS wished to proceed with
the testing she was required to bring along a sample from her
husband to her first appointment at the antenatal clinic. She was
to give her own sample at the clinic.
Initially only her sample was to be tested and if the result was
positive then her husband's sample would also be tested. If both
samples returned positive results, the mother would be referred to
genetic counselling and further testing at the hospital to
ascertain for certain whether the foetus had cystic fibrosis. The
leaflet issued to JS stated that in the event that the foetus had
cystic fibrosis, one option open to her was to consider termination
of the pregnancy.
In the case of JS the Health Board accepted that her mouthwash
sample was taken at her initial appointment at the Eastern, and
they also accepted that it was reported to her that the results of
the test were negative.
It is now known that the sample given by JS demonstrated a
positive result, but was of poor quality and ought to have been
repeated. Both JS and her husband are carriers of the cystic
fibrosis gene, and any child born to them has a significant risk of
developing the condition.
The Health Board sought to avoid liability and have the case
against them dismissed because the testing was carried out by a
body independent of the hospital, the Human Genetics Unit of the
University of Edinburgh. The Health Board argued that the testing
was not funded by them nor carried out by an employee of theirs,
but rather by an employee of the University. On that basis, they
asserted that they were not responsible for ensuring that
independent scientists exercised reasonable skill in carrying out
the testing. It was suggested that JS ought to sue the employers of
those scientists, the University.
To complicate matters further these scientists were
geographically located in another of the Health Board's hospitals.
The indication from the pleadings was that the scientists worked in
close proximity to Health Board employees carrying out similar
duties. In this case JS's sample had been analysed by an employee
of the University. JS asserted that due to the close working
relationship between the scientists and the hospital it was
impossible for JS to know exactly who would look at her
samples.
At a debate on the legal basis of JS's claim the arguments
focussed mainly on the existence of a non-delegable duty of care.
However, in deciding the issue Lady Stacey placed importance on the
fact the leaflet was sent to JS by the hospital and there was
nothing in it that indicated the testing would be carried out by
anyone other than the hospital. The leaflet made it clear that
should the test results be positive, then it would be the hospital
that would arrange for JS to receive further information and
testing. On that basis Lady Stacey concluded that the core issue
was not whether the hospital had control of the scientists who
carried out the screening, but rather whether the hospital had
assumed responsibility for the wellbeing of JS. In that regard she
commented that the factual circumstances surrounding the testing
and JS's perception of the circumstances surrounding the testing
would assist in determining that issue. Lady Stacey therefore felt
that it would be appropriate to allow the matter to proceed to a
trial.
This decision is only a first step for JS. It represents only
one hurdle in what will no doubt turn out to be a series in a case
of such complexity. While the judge acknowledges the existence of a
possible duty, the scope of that duty is yet to be determined.
Lady Stacey's circumvention of the non-delegable duties argument
is of interest. Her adoption of an assumption of responsibility
rationale prevents a defence based upon the instruction of an
ostensibly competent independent contractor.
Contributed by Caroline Gordon
