The limits of doctors’ liability for wrongful birth

27 November 2018 by Hannah Noyce

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

The Court of Appeal has held that a mother who consults a doctor in order to avoid the birth of a child with one disability may not recover damages for the costs associated with a different disability.

The Facts

The respondent, M, was concerned that she may be a carrier of haemophilia and consulted her GP, who arranged blood tests. Those tests, however, could only detect whether she herself had haemophilia, and not whether she was a carrier. She then saw the appellant, another GP, who told her that the results of the tests were normal. This led her to believe, incorrectly, that any child she had would not have haemophilia. The appellant admitted that she had been negligent.

M went on to have a son, FGN, who has haemophilia. Had she known that she was a carrier before she became pregnant, she would have undergone foetal testing, which would have revealed the condition, and she would have had a termination. Therefore, but for the negligence, FGN would never have been born.

FGN has also developed autism, which is unrelated to his haemophilia.

The claim sought the costs attributable to the haemophilia and to the autism.

The basic principles in so-called “wrongful birth” cases are now well-established. Parents cannot recover the costs of raising a healthy child, whose birth the law takes to be a blessing and not a detriment: McFarlane v Tayside Health Board [2000] 2 AC 59. Damages may be recoverable, however, for the additional costs associated with raising a disabled child: Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266; Groom v Selby [2002] PIQR P18. It was agreed that the appellant was liable to pay the additional costs incurred due to FGN’s haemophilia, which amounted to £1,400,000.

The issue for the Court was whether she was also liable for the costs associated with FGN’s autism, which would bring the total damages to £9,000,000. As a simple matter of “but for” causation those costs flowed from the negligence since, without it, FGN would not have been born at all. On the other hand, the defendant had not undertaken to provide any information or advice about the risks of autism, nor had the negligence increased the risk of autism.

Chester and SAAMCO

The judgment focuses on two important cases. The first is the well-known and much debated decision in Chester v Afshar [2005] 1 AC 134. In that case a surgeon failed to warn the claimant about a small, inherent risk that she might develop cauda equina syndrome as a result of spinal surgery. If she had been warned, she would still have had the surgery, but at a later date. The risk would have been the same whenever the surgery was performed.

The House of Lords held that, while the “but for” test was satisfied, the claimant could not succeed on ordinary causation principles because the risk was neither created nor affected by the failure to warn. However the majority held, on policy grounds, that since the risk which materialised was within the scope of the duty to warn, it could be regarded as having been caused, in the legal sense, by the breach of that duty.

The second is South Australian Asset Management Corportation v York Montague Ltd (“SAAMCO”) [1997] AC 191. In that case the defendant valuers undervalued a number of properties. The claimant made loans on the security of those properties which it would not otherwise have made, and suffered losses as a result. But for the undervaluation, the claimant would never have advanced the loans at all. However, the House of Lords held that the defendant was  liable only for losses arising as a result of the valuation being wrong – that is, for the kind of losses in respect of which the duty was owed.

Lord Hoffman gave the following example:

“…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.

[…] the doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct.”

Lord Hoffman accordingly drew a distinction between two broad types of case:

• “advice cases”, in which the defendant owes a duty to advise the claimant on what course of action to take; and
• “information cases”, in which the defendant owes a duty merely to provide information which forms part of the material that the claimant will take into account in deciding what course of action to take.

In advice cases, the defendant will be liable for all foreseeable loss which is a consequence of that course of action having been taken. By contrast in information cases, the defendant is only responsible “for all the foreseeable consequences of the information being wrong”.

As Lord Sumption confirmed in Hughes-Holland v BPE Solicitors and Another [2017] UKSC 21, this principle “has nothing to do with the causation of loss as that expression is usually understood in the law”. In the mountaineer example, the injury would not have occurred but for the doctor’s negligence. But the SAAMCO principle limits his liability at an earlier stage of the inquiry, because that injury is not within the scope of his duty at all. In other words, the overarching connection between the duty and the loss sustained must first be established, before we zoom in to look at the individual links in the chain of causation.

The decision in Khan

In the High Court, Yip J found in M’s favour. She concluded at [55] that the facts of the case:

“… produce a much closer analogy to Chester v Afshar than to the mountaineer’s knee in SAAMCO. Just as with the risk inherent in the surgery in Chester v Afshar, the risk of autism was an inevitable risk of any pregnancy, but it cannot be said that it would probably have materialised in another pregnancy. In the case of the hypothetical mountaineer in SAAMCO, it can be said that if the advice about his knee had been right he would have gone on to climb the same mountain and would have had the same accident. The risk that materialised (an avalanche) had nothing to do with his knee. Here though the risk that materialised had everything to do with the continuation of this pregnancy. The autism arose out of this pregnancy which would have been terminated but for the defendant’s negligence.”

She accepted that a key part of the rationale in Chester was that the injury suffered was the very injury about which the surgeon owed a duty to warn. By contrast, the duty here was to advise about haemophilia and not autism. However, she found at [57]-[58] that:

“…the focus of the defendant’s duty, or the purpose of the service to put it another way, was to provide the claimant with the necessary information so as to allow her to terminate any pregnancy afflicted by haemophilia, as this pregnancy was…

Once it is established that, had the mother been properly advised she would not have wanted to continue with her pregnancy, should it matter why she would have wanted a termination? Why logically should there be a distinction between the parent who did not want any pregnancy and one who did not want this particular pregnancy? In each case, the effect of the doctor’s negligence was to remove the mother’s opportunity to terminate a pregnancy that she would not have wanted to continue. To draw a distinction on the basis of considering the underlying reason why a mother would have wanted to terminate her pregnancy seems unattractive, arbitrary and unfair.”

The Court of Appeal disagreed. Lady Justice Nicola Davies DBE found that the scope of duty test in SAAMCO was determinative of the issue. The facts essentially fell within Lord Hoffman’s “information” category:

…[the appellant’s] advice was sought in respect of one issue, namely whether the respondent was a carrier of the haemophilia gene. It did not extend beyond that…

The appellant had not undertaken any wider duty to advise the respondent generally about the risks of pregnancy. She was not under a duty to protect the respondent from all of those risks, still less to prevent the birth of FGN. That was a decision which could only be made by the respondent taking into account a wide range of matters, including many which the appellant knew nothing about. The case therefore differed from Parkinson and Groom, since in both of those cases the defendant had assumed a wider duty to prevent the birth of any child, including one with a disability.

The Judge’s reasoning was therefore flawed, see at [28]-[29]:

In finding that the respondent was deprived of the opportunity to terminate the pregnancy what the judge is in fact referring to is one of the links in the chain of causation whereas following SAAMCO the link must be between the scope of the duty and the damage sustained.

… Central to the reasoning in Chester v Afshar was the fact that the misfortune which befell the claimant was the very misfortune that the defendant had a duty to warn against. A fundamental distinction with the facts of this case. […] In the context of this case the development of autism was a coincidental injury and not one within the scope of the appellant’s duty.

In other words, the Judge had jumped the gun by reverting to the “but for” causation test before first deciding whether the overarching link between duty and loss had been established. In Chester it was established, but in the present case it was not.