The number 1 court of the Administrative Contentious Section of the Court of Instance of Vitoria-Gasteiz has issued a ruling that orders Osakidetza to compensate with 1.2 million euros some parents for the death of their baby in December 2020, when he was five months old.
The court finds "malpractice" in the intervention of the geneticist whom the couple went to when they decided to try to have another child after the death, in 2019, of a first baby from causes in which a "genetic cause" was not ruled out, according to what the General Council of the Judiciary has reported in a statement published on its website.
The ruling explains that in 2018 the couple turned to assisted reproduction treatment, from which three embryos were obtained. One of them was transferred and a boy was born who died in 2019. A genetic study was carried out on this first baby that "did not identify any pathogenic alteration", although it also did not then rule out the presence of an "unknown genetic cause".
Before trying a new pregnancy, the parents went to a geneticist and researcher at a Basque public hospital, with the aim of avoiding reliving a similar situation. The specialist requested the previous genetic report and, "in view of it, reassured the couple" and told them that they could become parents again with "a very low risk", without proposing "more studies, to ensure her genetic advice".
Subsequently, the couple had a second baby who died in December 2020 at five months of age. In this case, a genetic exome study was carried out, "much more extensive" than the one performed on his brother, which revealed a mutation in the NFU1 gene, a gene that had not been examined in the first test.
Genetic screening and medical liability
The parents alleged that the doctor committed malpractice by not giving importance to the absence of a more complete genetic exome in the case of the first child, nor proposing preimplantation genetic screening of the two frozen embryos, nor a specific genetic study of the parents.
Osakidetza argued that there was no causal link between the care provided and the outcome, as it understood that the symptoms detected in the first baby did not make it possible to reach the diagnosis that was later achieved with new tests.
However, the court supports the plaintiffs’ position and concludes, in light of the evidence presented, that there was "malpractice", as well as "negligence and neglect" in the geneticist’s conduct. It considers that the specialist should have exhaustively reviewed the clinical history of the first baby and requested additional tests, such as an exome of the DNA sample of the first child and a genetic study of the parents.
According to the ruling, with those analyses "the NFU1 mutation associated with the multiple mitochondrial dysfunction syndrome would have appeared, which would have given a perfect explanation for the death" of the first baby and, with that finding, the doctor would have "recommended avoiding natural pregnancy, as well as performing exome sequencing of the two frozen embryos, specifically aimed at finding the mutated NFU1 gene".
According to the court’s reasoning, that action would have prevented the birth of the second baby with the same congenital genetic disease that his brother suffered and would have avoided the parents "going through the traumatic event of gestating and seeing a second baby die, again, and for the same cause".
Moral damage and amount of compensation
The judicial decision notes that the moral harm caused reaches "exceptional seriousness" and sets at 1,220,106.66 euros the sum that Osakidetza must pay the couple as compensation.
The ruling emphasizes that "to the death of the second child must be added the additional drama that the couple did what was in their hands to avoid the genetic disease of the second child and his death, so that it generated in them the frustration of not having done enough, as well as the anger and frustration that third parties technically versed in the matter did not do what was incumbent on them and could have prevented it". The ruling is not final and has been appealed by the Basque Health Service.