Abstract
Mrs Farraj, a patient of a Jordanian hospital, was concerned that her pregnancy might be affected by beta thalassaemia major (BTM). Her obstetrician sent a small, blood-stained and poor quality tissue sample to King's Healthcare NHS Trust to test. King's sent it to Cytogenetic DNA Services Ltd., a private laboratory, with instructions to ‘culture only’. King's analysed the cultured sample and reported that all was well. When the child was born that reassurance proved wrong. He had BTM, with the lifetime consequences for treatment and care which that condition entails. King's analysis had been carried out on maternal not fetal tissue. The parents sued the hospital and the laboratory, and succeeded against both at a High Court trial on liability and jurisdiction. The judge found there had been a fundamental failure of communication between the hospital and the laboratory. King's appealed against the judgment. The Claimants cross-appealed, relying on the judgment but also arguing that King's had a non-delegable duty of care. The Court of Appeal found in favour of King's on the appeal and cross-appeal. The laboratory is liable for the parents' damages and for the legal costs of the parents and of King's. The case has implications for legal advisers and risk managers when services are contracted out to private providers, though the outcome of the argument on non-delegable duty of care may have been different if Mrs Farraj had been directly under King's care as a patient.
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