Farraj and Another v King’s Healthcare NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Swift,The Hon. Mr Justice Burnett,MRS JUSTICE SWIFT DBE,. |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWHC 2468 (QB),[2006] EWHC 1228 (QB) |
| Docket Number | Case No: HQ00X04275,Case No: 0004275 |
| Court | Queen's Bench Division |
| Date | 17 October 2008 |
[2006] EWHC 1228 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Swift Dbe
Case No: 0004275
Gerard McDermott QC and Harry Trusted (instructed by Simpson Millar) for theClaimants
Jane Mishcon (instructed by Hempsons) for the Defendant/Part 20 Claimant
Prashant Popat (instructed by CMS Cameron McKenna) for the Part 20 Defendant
Hearing dates: 26 th and 27 th April 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE CLAIM
On 14 April 1999, the Claimants, who are a married couple and are Jordanian nationals residing permanently in Jordan, commenced an action against the Department of Haematological Medicine at King's College Hospital, London (KCH), part of the King's Healthcare NHS Trust. The Claimants claimed damages for the wrongful birth of their son, Abdulla, who was born on 4 December 1995. He was later diagnosed as suffering from beta-thalassaemia major (BTM), a severe hereditary blood disease. The Claimants allege that KCH, who had carried out pre-natal DNA testing, negligently failed to diagnose that Abdulla would be born with BTM. They contend that, had the correct diagnosis been given, the pregnancy would have been terminated.
Subsequently, KCH commenced Part 20 proceedings against Cytogenetic DNA Services Limited ("CSL"), a private cytogenetics laboratory in London. (In fact, in 1995, the laboratory was operated by an entity or entities which preceded the incorporation of CSL but, for ease, I shall refer to it as CSL throughout.) CSL had been responsible for culturing the sample of tissue used by KCH for the DNA testing. In their Part 20 Particulars of Claim, KCH denied liability to the Claimants but contended, that if liability was established against them, they would seek an indemnity or contribution against CSL in respect of their negligence, under the provisions of the Civil Liability (Contribution) Act 1978.
In its Defence to the Part 20 claim, CSL denied, inter alia, that it owed a duty of care to the Claimants. CSL made an application that the issue of whether or not it owed a duty of care to the Claimants should be tried as a preliminary issue. This application was not contested and, on 3 October 2004, an order for trial of the preliminary issue was made. Meanwhile, the Claimants had issued an application to join CSL as Second Defendant in the action. That application was adjourned, to be dealt with following, but at the same time as, the trial of the preliminary issue.
THE AGREED FACTS
A Statement of Agreed Facts was agreed between KCH and CSL. I have set out those facts (in virtually identical terms to the agreed Statement) below. I have interposed some explanation of terms, taken from a Glossary prepared by CSL.
The Claimants are both healthy carriers of the BTM trait. Before the birth of Abdulla in 1995, the Claimants already had two children. The first child did not have the BTM gene but the second child suffers from BTM.
In 1995, the First Claimant became pregnant for the third time. Her pregnancy was managed by the King Hussein Medical Centre in Jordan. She was under the obstetric care of Dr Batayneh.
The Claimants wanted to establish whether or not the fetus had BTM. In May 1995, at about the eleventh week of the pregnancy, a chorionic villus sample (CVS) was taken from the First Claimant by Dr Batayneh. A CVS consists of tissue taken from the folds of the chorion, from which the fetal part of the placenta is formed. A CVS from the developing placenta is removed from the uterus of a pregnant woman, usually by way of inserting a fine needle through the abdomen. DNA is then extracted from the CVS and analysed.
The CVS, together with blood samples taken from both Claimants and their affected child, were sent by Dr Batayneh (via the Jordanian Embassy in London) to Dr Mark Layton, a doctor (then Senior Lecturer in Haematology and Honorary Consultant) in the Department of Haematological Medicine at KCH. By a letter dated 6 May 1995, Dr Batayneh asked KCH to assess the BTM status of the pregnancy.
The CVS and blood samples were received by KCH on 10 May 1995. The CVS was small and required culturing (i.e. the growing of further cells) before DNA testing could be carried out by KCH. This commonly occurred when samples were sent to KCH from overseas. KCH therefore sent the CVS to CSL for culturing.
Culturing is the process by which cells are grown in vitro to increase their volume. This process also increases the amount of DNA available for analysis. Although it does not appear in the Agreed Statement of Facts, CSL admitted in its Defence to the Part 20 claim that the culturing of placental biopsy samples necessarily involves some element of cleaning and sorting. Contaminating blood is removed by washing the samples in pools of tissue culture medium. Clots and other debris are then discarded and any morphologically identifiable villi (i.e. fetal cells) are separated from the remainder of the tissue. This is done manually under a dissecting microscope, using sterile hypodermic needles. The villi are then cultured.
On 11 May 1995, CSL received the CVS (which was in an unlabelled specimen tube) from KCH, together with an accompanying letter from Ms Lisa Thompson, Chief Biomedical Scientist in Dr Layton's team. The letter from Ms Thompson stated:
i) that she was enclosing a CVS from Hanan Basem.
ii) that the sample had been received unlabelled.
iii) that CSL were to " CULTURE ONLY" the CVS
iv) that the cultured cells were to be returned to KCH for DNA analysis for BTM.
CSL did not receive from KCH the Claimants' blood samples or those of their affected child.
By a letter dated 18 May 1995, Dr Layton sought confirmation from Dr Batayneh of the identity of the donor of the CVS, informed him that the CVS was too small to attempt direct DNA analysis and raised concerns about the potential for diagnostic error due to maternal contamination. (I interpose here to explain that, if fetal tissue is contaminated with maternal tissue, there is a risk that the results of DNA testing will reflect the status of the mother, rather than that of the fetus. If this is not recognised, a mistaken diagnosis may result. It is suggested that maternal contamination may have led to the mistaken diagnosis in this case.) The letter also said that 'we' (suggesting KCH) were attempting to culture the CVS and that DNA analysis might be possible if sufficient cells grew. CSL did not receive a copy of this letter.
Between 11 May and 12 June 1995, Mrs Emma Wilcock (née Stott), a Laboratory Technician at CSL, cultured the CVS under the supervision of Mr Rodney Meredith, then owner of CSL and a former lecturer in genetics. CSL returned the cultured cells to KCH on 12 June 1995. There was no communication from CSL to KCH between 11 May 1995, when it received the cells, and 12 June 1995, when the cells were returned to KCH.
DNA from the cultured cells was analysed by KCH and, on 21 June 1995, Dr Layton sent a letter to Mr Batayneh, reporting that the fetus did not have BTM. CSL did not receive a copy of that letter.
Meanwhile, CSL had retained some cells from the CVS and repeated the culturing process. The additional cultured cells were sent by CSL to KCH on 26 June 1995.
CSL charged KCH the sum of £80 for culturing the CVS. The invoice was duly paid. On 21 June 1995, KCH invoiced the Jordanian Embassy the sum of £580 (presumably including the £80 paid to CSL) in respect of "genetic study and pre-natal diagnosis of BTM by genetic analysis of cultured trophoblast (i.e. fetal) cells".
At no time was there any direct contact between the Claimants and KCH or CSL. At no time during the culturing process did CSL know the identity or contact details of Dr Batayneh.
The Claimants proceeded with the pregnancy and, as I have said, Abdulla was born on 4 December 1995. On 24 April 1996, he was diagnosed with BTM.
On 18 October 1996, Dr Layton received a letter dated 7 October 1996 from a Jordanian lawyer, Mr Kassim, informing him of the fact that Abdulla had BTM. In the letter, Mr Kassim made a request for compensation from KCH. On the same day, Dr Layton contacted CSL. CSL sent KCH a copy of Ms Thompson's referral letter, which had accompanied the CVS when it was sent to CSL. This referral letter was marked with various hand written annotations. The version of the letter sent by CSL to KCH on 18 October 1996 contained the words, "N.B. tissue so poor tiny fragmented pieces (v. poor ?villus)". Those words had been added by Mrs Wilcock at some time during the culturing process.
THE STATEMENTS OF CASE
It is necessary to trace in a little more detail the history of the parties' pleaded cases, which has followed a somewhat unusual course. I shall confine my summary to what I consider to be the most relevant parts of the statements of case.
Particulars of Claim
The original Particulars of Claim, served on 31 January 2001, criticised KCH for having failed to dissect out any maternal material present in the CVS provided and for having failed to request a further (better quality) CVS, and also for the terms of Dr Layton's report to Dr Batayneh which, as I have said, stated that the fetus was not affected by BTM. There was no allegation that the DNA analysis was negligently performed.
The Defence
In their Defence, served on 22 March 2001, KCH averred that the culturing of the CVS (including the dissecting out of maternal...
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