The Court of Appeal handed down judgment in the case of Farraj and Another v King’s Healthcare NHS Trust and Another [2009] EWCA Civ 1203 on 13th November 2009. King’s Healthcare NHS Trust (KCH) sought to appeal against part of an order in an action for damages for negligence leading to ‘wrongful birth’. Upon falling pregnant the claimants were advised to undertake DNA testing for beta thalassaemia major (BTM), a blood disorder causing disability and a reduced life expectancy. If tests concluded that the child would suffer from BTM the pregnancy would be terminated.

Upon receipt of the sample KCH found that it was not suitable for DNA testing and sent it to the second defendants Cytogenetic DNA Services Limited (CSL) for culturing; although the CSL technician had doubts about whether the sample contained foetal tissue these were not raised with KCH who went on to test the cultured sample without further enquiry as to its suitability. The conclusion that the foetus did not have BTM was incorrect and the baby was born in December 1995.

The Court of Appeal held that KCH was not under a positive duty to seek information from CSL on the quality of the sample; the trial judge had incorrectly interpreted the evidence of the experts, all of whom were agreed that it was normal for a cytogenetic practice (CSL) to communicate any doubts about the suitability of the sample. The judge had failed to make a finding of fact that there was a clear, albeit informal, understanding between KCH and CSL, that if the latter had any doubts as to the suitability of a sample it would raise these with KCH. The Court of Appeal concluded that KCH was entitled to assume all was well unless it heard from CSL to the contrary.

Dismissing the cross-appeal, the court distinguished between situations in which a patient is admitted to a hospital for treatment and is owed a non-delegable duty to be treated with due care and skill regardless of the employment status of the practitioner, from the present situation where tests were being carried out on samples provided by someone who was not a patient. The Court held that KCH had lawfully delegated their duty to CSL and so were not liable in negligence.