Damages for wrongful birth: how far does a doctor’s responsibility go?

28 November 2017 by

MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment 

Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?

The claimant sought damages arising out of the wrongful birth of her son Adejuwon.  She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.  

The facts

  • The claimant, M, has a nephew who was born with haemophilia. She wished to avoid having a child with haemophilia and so consulted her GP with a view to establishing whether she carried a copy of the faulty gene. Being an aunt of an affected male is an indicator of carrier status.
  • Blood tests were undertaken but could not confirm whether she was a carrier.  Only genetic testing would have ascertained this properly.
  • Her GP advised her that her blood tests results were normal; she did not have haemophilia.  She was therefore led to believe that any child she had would not have haemophilia. However, the tests did not tell her that she was not a carrier.
  • She subsequently had a child who was diagnosed with haemophilia. Only then was she referred for genetic testing. This revealed she was a carrier.
  • Had she been referred for testing prior to conceiving, she would have known she carried the mutation. She therefore would have had foetal testing for haemophilia.
  • Such testing would have shown that the foetus was affected and she would have terminated the pregnancy.
  • Her son was later diagnosed as also suffering from severe autism, the extent of which meant that he was unlikely to ever live independently or be in paid employment in the future.
  • His haemophilia did not cause his autism or nor did it make it any more likely that he would have autism. On the other hand, his autism has made the  management of the haemophilia much more difficult.

The parties agreed that M was entitled to recover the additional costs arising out of her son’s haemophilia diagnosis, as well as general damages for prolongation of the pregnancy.

So the only issue for the Court was whether the claimant could also recover the additional costs associated with the son’s autism.

Issues before the Court

This was a “wrongful birth” claim. But for the negligent advice, the claimant would have terminated her pregnancy. Since the House of Lords decided in McFarlane v Tayside Health Board [2000] 2 AC 59 that public policy militated against claims for the costs of raising a healthy child, damages are only recoverable for the costs or raising a disabled child (Hardman v Amin [2001] P.N.L.R. 11). There does not have to be a link between the negligence and the disability. In 2002 the Court of Appeal concluded that if negligence has led to the conception or continuation of the pregnancy, the claimant is entitled to damages for

any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens. (Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266)

Groom v Selby [2002] PIQR P18, concerned a child who contracted salmonella meningitis during delivery. The mother was able to claim damages for the costs of bringing up the brain-damaged child even though the only negligent act was the failed sterilisation leading to the pregnancy.  In the instant case, there was no argument that Adejuwon’s autism was anything other than a natural and foreseeable consequence of his birth. There had not been a new intervening act or anything else that interrupted the natural chain of events from conception. Where the parties disagreed was on the question of assumption of responsibility; the scope of the duty of care and the extent to which it would be fair, just and reasonable to hold the defendant liable for the costs related to Adejuwon’s autism.

Interestingly, the decision in McFarlane has been interpreted to mean that a parent may not recover for the cost of raising a normal, healthy child even if the very purpose of her wishing to avoid a pregnancy was her own disability; thus in Rees v Darlington Memorial Hospitals NHS Trust [2003] UKHL 52; [2004] 1 AC 309 the disabled mother was denied the costs of bringing up her child born as a result of the defendants’ failed sterilisation procedure.

But the difficult question at the core of this case was whether the loss was within the scope of the doctor’s duty. In a property valuation case, South Australia Asset Management Corporation v York Montague [1997] AC 191, the House of Lords was asked to consider the extent of the liability of a valuer who provided a lender with a negligent overvaluation of property offered as security for a loan. Lord Hoffmann said

It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.

Applying this principle, the defendant in the present case argued that the loss referable to Adejuwon’s autism was not the kind of loss in respect of which the defendant’s duty was owed.  The defendant’s liability should be limited to the consequences of the haemophilia as that was the particular condition about which she was consulted.

The “mountaineer’s knee” problem

In the SAAMCO case Lord Hoffmann conceptualised this issue as follows. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

Is the doctor responsible for the injury which would not have happened if the mountaineer had been given correct information about his knee? The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct. Liability for this injury would “offend common sense”

because it makes the doctor responsible for consequences which, though in general terms foreseeable, do not appear to have a sufficient causal connection with the subject matter of the duty.

It was agreed in the present case that the risk of autism was a risk that existed with every pregnancy. The risk was not increased, nor were the chances of avoiding it lessened, by the failure to properly manage the risk of the claimant having a child with haemophilia. The defendant GP submitted that her duty extended to providing information in respect of just one disability and that it would not be right to say that she had assumed responsibility to protect from all the consequences of the claimant’s decision to proceed with the pregnancy.

The claimant on the other hand, relying on Parkinson, contended that the ‘kind of loss’ that may be recovered in wrongful birth cases extended to cover disabilities arising from the normal incidents of conception, intra-uterine development and birth. The purpose of the duty was to enable the mother to take steps to terminate an unwanted pregnancy. There was no rational distinction to be drawn between a woman who did not want any pregnancy and one who did not want a particular pregnancy. It was no less fair, just and reasonable to impose responsibility for all the disability-related consequences in this case than in Parkinson.

The Court’s Decision

Yip J accepted the claimant’s arguments. In her concluding remarks, she observed that this was a matter of simple ‘but for’ causation.

Adejuwon would not have been born but for the defendant’s negligence. The claimant therefore would not have had a child with the combined problems of haemophilia and autism. Had she known she was a carrier, she would have undergone foetal testing and would then have terminated this particular pregnancy. The other risks associated with that pregnancy would no longer have existed.

This case was distinguishable from the hypothetical mountaineer in the sense that the autism was associated with the pregnancy (which would have been terminated on correct advice) whereas an avalanche was not associated with the mountaineer’s particular expedition (which would not have been undertaken on correct advice). In order to determine the focus of the defendant’s duty, said the judge, we have to ask what purpose was behind the service sought by the claimant. In this case, it was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. The birth of Adejuwon resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck, Yip J points out, in the same way that the meningitis in Groom was bad luck. Nothing to do with the original advice sought, but a natural consequence of pregnancy and birth.

Philip Havers QC of 1 Crown Office Row acted for the claimant in this case. 

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1 comment;

  1. Matthew Seligman says:

    This decision is so wrong, real “wood for the trees” wrong. Leave aside that somehow it’s an “unlucky parent” whose child is born autistic, how do other parents of autistic children feel about this decision? They will all have to shoulder the £9 million themselves, but this parent gets a free pass on the NHS, it being decided that in this case the statistical risk of having an autistic child was one that, because the NHS assumed a duty to protect the parents from giving birth to a child with haemophilia, they had also assumed a duty to protect the parents from. Madness. And cruelly indifferent to the herd. This barrister has form for persuading courts that black is white, and he’s done it again.

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