Parents of Disabled Child Win Medical Error Case

When Christine Draon was pregnant with her first child, an ultrasound scan revealed a potential anomaly in the development of the fetus. The amniocentesis failed to detect any abnormality, but when her baby was born in 1996, the child had severe cerebral malformations and a major disability. It was immediately apparent that the child would require full-time, specialist care.

The hospital admitted that the amniocentesis should have identified the abnormality, and the couple wasted little time launching legal proceedings.

In 2003, the Paris Administrative Court ruled that the hospital had been grossly negligent and had deprived the applicants of the possibility of a therapeutic termination to the pregnancy. The couple were awarded compensation for non-pecuniary damage and disruption to their lives, and not, however, for the special burdens arising from the children's disabilities.

Meanwhile, Sylvia Maurice had begun a comparable case after hospital authorities admitted to making a diagnostic error, the results of her prenatal examinations having been mixed up with those of another mother-to-be.

She gave birth months later to a baby suffering infantile spinal amyotrophy, a genetic disease which causes muscular atrophy and which also afflicts the family's first daughter. Maurice had already terminated a previous pregnancy after learning there was a risk the child might be carrying the same illness.

French law as an infringement of human rights

Both cases revolved around a law introduced in early 2004 -- known as the anti-Perruche Law -- which precludes claims against a doctor or hospital concerned for compensation for special burdens arising throughout a child's life as a result of a disability.

The two sets of parents argued that this deprived them of any effective remedy in providing for their children's needs, since they were unable to obtain compensation from the person they saw as responsible for their situation.

Both families took their cases to the European Court of Human Rights in 2003.

On Wednesday, the ECHR upheld the applicants' allegations that French law regarding the disability compensation system represented a violation of the Human Convention on Human Rights, and specifically Article 1, which provides for "the rights to the peaceful enjoyment of one's possessions."

Ethics

The cases have triggered an emotionally fraught debate in several European countries about babies born after medical misdiagnosis, with many voicing ethical concerns about the concept of viewing a child as legal "harm."

At stake are cases of children born with severe health problems, which doctors failed to recognize, but also unwanted healthy children born because of medical error in the process of termination, or sterilization.

In 1993, the German Constitutional Court, the country's highest legal instance, ruled that "a legal qualification of a child's existence as a source of damage is constitutionally unacceptable," and said "the cost of care for a child cannot be seen as a loss."