Edyta Mordel, 33, (pictured with her partner) told the High Court in London she would have terminated her pregnancy if she had known he would be born with Down’s
A mother who said she would have aborted her beloved son if she had known he had Down’s Syndrome has won a massive NHS compensation payout after antenatal tests were not carried out.
Although she is now devoted to four-year-old Aleksander, Edyta Mordel told the High Court in London she would have terminated her pregnancy if she had known he would be born with Down’s as she ‘would not have wanted her child to suffer the way that disabled people suffer’.
Miss Mordel, 33, was devastated when Aleksander was born disabled at the Royal Berkshire Hospital in 2015 – but has since devoted herself to caring for her beloved son.
At the High Court today, Mr Justice Jay ruled against the Royal Berkshire Hospital NHS Trust and awarded Ms Mordel – who wants more than £200,000 – the right to massive damages.
He said the sonographer who conducted Mrs Mordel’s scan had failed to obtain her ‘informed consent’ to going ahead without the Down’s Syndrome screening.
Previously, Ms Mordel’s lawyers estimated her claim to be worth more than £200,000, which she would use to cover the increased costs of bringing up a disabled child.
Miss Mordel insists she asked for checks to be carried out during her pregnancy. The case is legally termed as a ‘wrongful birth’ because Miss Mordel says she would have had an abortion if she had known of the condition.
Figures from 2017 revealed that the NHS Litigation Authority had paid £70million to parents in ‘wrongful birth’ cases in five years.
That included £40million of damages in 16 cases where parents claimed that antenatal screening failed to warn them of the risk that their baby would be born with a disability – which equates to about £2.5million per family.
Miss Mordel, from Reading, sued for compensation for the increased financial costs of caring for her son, and for its impact on her ability to work.
She told the High Court in London that she would have aborted her four-year-old son Aleksander if she had found out about his diagnosis during her pregnancy. Pictured is Ms Mordel and her partner
She discovered she was pregnant in 2014 and says she told a midwife at her first appointment that she wanted to be screened for Down’s.
When she went for her 12-week scan she believed the test was carried out and that she had received the all-clear. But the test was not performed and the sonographer recorded ‘Down’s screening declined’ in her medical notes.
Lawyers for the NHS claimed Miss Mordel was offered the tests but declined them, and ‘bitterly regretted’ her decision after Aleksander was born.
Yet Miss Mordel, who is originally from Poland, told the High Court: ‘I was always sure about the decision and I always wanted it.
‘I spoke with the midwife about Down’s syndrome screening. I had informed myself. I watched a lot of videos and read about screening.
When she went for her 12-week scan she believed the test was carried out and that she had received the all-clear. But the test was not performed and the sonographer recorded ‘Down’s screening declined’ in her medical notes
‘I knew from the start that I would agree on the Down’s syndrome screening and I would not make any other decision.’
Her barrister, Clodagh Bradley QC, said the screening would have revealed a high risk of Down’s and further tests would have confirmed the condition.
‘Miss Mordel would have been offered an abortion and she and her partner, Aleksander’s father Lukasz Cieciura, agreed they would have terminated the pregnancy.
Instead, she gave birth by caesarean section at the Royal Berkshire Hospital in January 2015, and her medical notes recorded that she was ‘very upset and angry’ when Aleksander was diagnosed with Down’s.
She sued the NHS for ‘wrongful birth’, claiming that had she had the screening and Down’s was confirmed, she would have aborted her unborn son.
‘I knew someone from work with Down’s Syndrome,’ she said in the witness box.
‘I saw how difficult his life is and I would not have continued my pregnancy.
‘I would not have wanted a disabled child and I would not have wanted my child to suffer the way that disabled people suffer.
‘I wouldn’t want to have brought my child into the world like that.’
Medics at the Trust claimed that Miss Mordel had declined to have Down’s Syndrome screening and that was why it was not done.
Although she had been booked in to have the test, when she saw the sonographer she said ‘no’ when asked if she wanted it.
The hospital’s ultrasound reports system recorded ‘Down’s screening declined’, showing that she had refused it, they said.
At the High Court today, Mr Justice Jay ruled against the Royal Berkshire Hospital NHS Trust and awarded Ms Mordel – who wants more than £200,000 – the right to massive damages
But Miss Mordel said she believed all along that the screening had taken place and ‘declined’ meant a high Down’s risk was not detected.
Giving judgment, Mr Justice Jay said the sonographer had failed to obtain Ms Mordel’s informed consent to going ahead without screening.
Her initial question to Ms Mordel had been ‘abrupt’ and her follow-up did not go far enough, he said.
‘She knew, or ought to have known, that Ms Mordel had indicated provisionally that she wanted Down’s screening,’ he said.
‘She knew, or ought to have known, that this was at the very least likely to be her expectation when she walked into the room.
‘The sonographer should have been expecting a ”yes” answer but instead she heard the opposite.
‘Yet this, on my findings, prompted no further inquiry.’
Ms Mordel, for whom English is a second language, had failed to process the question and her reflex response was to say ‘no’, he added.
From that point on, she fully believed that the screening had been undertaken and the baby was healthy.
He said that, at a further appointment, Ms Mordel’s midwife had failed in her duty to explore why the screening had not taken place when she initially agreed to it.
‘I have found that she consistently wanted Down’s screening of her baby,’ he continued.
‘She did not have a principled objection to termination…Had she been informed that her baby had Down’s Syndrome, I am satisfied that she would have proceeded to termination.’
The decision means Ms Mordel is entitled to a damages payout from the NHS Trust, with her lawyers claiming that she should get more than £200,000.
In so-called wrongful birth cases, compensation is paid out to cover the additional costs associated with bringing up a disabled child.
The judge added: ‘Nothing I have said in this judgment should be interpreted as suggesting that the birth of a child with Down’s Syndrome must be seen as unwelcome.
‘Some parents have absolute ethical objections to termination of pregnancy, and for them the discussion begins and ends at that point.
‘Other parents accept the possibility of having a baby with Down’s Syndrome without a shred of concern or reluctance.
‘The state expresses no judgments either way, but it is the policy of the NHS that Down’s screening must be offered to all expectant mothers, the premise being that many would wish to exercise their right to proceed to medical termination in the event of a diagnosis.
‘These various wishes and decisions must be and are respected without comment.’
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