This question arose in the High Court recently, where the parents of a child born with Down’s syndrome sued for damages from the hospital and clinic that attended to the pregnancy.  The hospital/clinic staff were found to have been “grossly negligent” in failing to ascertain at an early stage of the pregnancy that the foetus suffered from a genetic abnormality.

In finding further that the mother was herself not guilty of any “contributory negligence” in failing to follow the doctor’s instruction to return for a follow-up ultrasound scan after the first had raised a “red flag” (she had instead followed the contradictory advice from a nurse at the clinic that no second scan was needed), the Court discussed some of the principles applicable -

• Patients themselves must often be responsible for “the performance of some part of the treatment or cure”;

• However, a doctor has a “special duty towards the patient to give clear and unambiguous instructions, to explain to the patient in intelligible terms what is required of him and to give him any warning which may be necessary in the circumstances”.  In this case, the doctor should have

o Informed the mother “in detail of the risks she faced and precisely what the effect was of the inconclusive scan and the absolute necessity of having an urgent re-scan”, and

o Issued a “written instruction to the clinic to make it absolutely clear that the [mother] was required to return”.