After being dismissed by the Caen Administrative Court in June 2021, the parents of a child with Down syndrome appealed on April 7 to the Nantes Administrative Court of Appeal (see Parents suing the hospital who did not offer them NIPT). They ask him to condemn the Avranches-Granville hospital center ” to pay them €250,000 in compensation for not having detected their child’s illness before his birth in December 2017 » [1].
“Bad” screening
The hospital had assessed the risk of this little boy’s trisomy at ” 1 in 1,452 “. A probability that did not warrant a more invasive examination “. In fact, amniocentesis, an examination intended to make a diagnosis, is only offered according to the results of the first two screening screens for trisomy 21: combined screening [2] and screening from free DNA circulating in maternal blood [3] (cf. Prenatal screening? Always more) [4].
According to a ” expert commissioned after childbirth “, the screening would not have been carried out in a way ” fully compliant to usual clinical practice. The nuchal translucency could not be measured “correctly” and the mother’s smoking had not been taken into account in the risk assessment.
A simple fault “at a pinch”
At first instance, the Caen court rejected the parents’ request, ” on the grounds that it was not established that an abortion would have been carried out if the test had been carried out in irreproachable conditions “. In other words, the only “fault” of the hospital is not having allowed them to prepare for the birth of their child.
During the appeal hearing, the public rapporteur recalled that ” it was necessary to establish the existence of a “characterized fault” presenting a “character of intensity and evidence” to be able to engage the responsibility of the hospital center “. He recommended that the Court ““resume at [son] account” conclusions “clear” from the expert and deny the request. ” “Not because they do not justify a loss of chance [de pratiquer une IVG]” as the administrative court of Caen had judged in first instance, but “more fundamentally” because the Avranches-Granville hospital center has no “not committed any serious fault“ “. Neglecting the mother’s smoking is ” in a pinch of a simple fault, according to him. But not from a clear fault.
The Court, which follows “ often » the opinion of the public rapporteur, has put his opinion under advisement and should deliver his verdict within a month.
We understand of course the confusion that can seize parents when they have to welcome a different child. But what message do we send to people with Down syndrome – and to their families – when the birth of a child with Down syndrome is considered to be an injury that requires reparation?
[1] La Gazette de la Manche, The Sud-Manche hospital attacked for not having detected trisomy 21 in a baby (08/04/2022)
[2] It consists of the dosage of maternal serum markers and the measurement of nuchal translucency
[3] Also called non-invasive prenatal screening (NIPT)
[4] Screening for aneuploidy using free DNA circulating in the maternal blood is proposed at the end of the combined screening when the risk is greater than 1/1000 and less than 1/50. The DPNI has been reimbursed since January 18, 2019. When the risk is greater than or equal to 1/50, “ the realization of a fetal karyotype is immediately proposed “. NIPT may also be recommended from the outset in the event of a multiple pregnancy or a history of pregnancy with trisomy 21.
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