Mother close to compensation for disabled daughter

The mother of a six-year-old girl, whose birth defect was not picked up by medical professionals during a pregnancy scan, is a step closer to winning compensation for her disabled daughter.

The Auckland woman, whose name has been suppressed, is seeking ACC cover because a sonographer and radiologist misread her 20-week ultrasound and failed to diagnose her unborn baby with spina bifida.

If she had been given the correct information about her baby's condition, the pregnancy would have been terminated, the woman says.

Now, her daughter - who walks mostly with a support frame - may miss out on crucial and costly physiotherapy as she grows older because ACC have denied their claim to compensation, the mother says.

Today, a judgement from the Court of Appeal was issued in favour of the woman, whose appeals to the District Court and the Hight Court had previously been dismissed.

The Court of Appeal said its decision to grant the appeal was based on the fact that the mother had suffered a personal injury through her inability to choose to terminate her pregnancy following the incorrect diagnosis.

"We consider that the continued pregnancy of the appellant following a misdiagnosis in the 20 week scan is capable of being an injury suffered by the appellant for the purpose of the [Accident Compensation] Act.''

The court's judgement also stated the mother had given "unchallenged evidence that had she been given a correct diagnosis following the 20 week scan, she would have chosen to seek an abortion.''

Background provided in the court's judgement showed independent specialists had reviewed the woman's pregnancy scan and found signs indicative of a spina bifida-type defect.

The case has now been referred back to the District Court, as further evidence is to be called.

This evidence will address the woman's eligibility to have her pregnancy terminated at 20 weeks.

Relevant legislation states a termination cannot be provided after 20 weeks gestation unless a doctor believes the "miscarriage is necessary to save the life of the woman or girl, or to prevent serious permanent injury to her physical or mental health.''

It is ACC's case that under this legislation - and based on medical evidence already before the court - the woman would have been unable to terminate her pregnancy.