Court clarifies the scope of damages in ‘wrongful birth’ actions

  • Insight

29 May 2018

A recent English High Court decision has helped clarify the scope of damages which could be recoverable in the case of so-called ‘wrongful birth’ actions.

The parents raising the court action may be able to claim for not only the additional cost of raising the child with the disability for which they had requested testing, but also for any disability the child suffers. This is based on standard principles of causation. The English High Court’s decision in Meadows v Khan is a welcome one for many such claimants.

Wrongful birth actions – the background

For background family or health reasons, some prospective parents may have concerns that their child will be born with a significant, debilitating disability. They can seek medical assurances or testing for genetic risk markers or for disabilities. A failure to carry out the relevant medical tests when requested, or testing which would otherwise enable the pregnancy to be terminated, may give rise to an action for medical negligence.

Recent times have seen significant legal developments in the concept of “wrongful birth” actions. AImost 20 years ago in the Scottish case of McFarlane v Tayside Health Board, the House of Lords held that the costs of raising a healthy child with no disability were not recoverable, despite the child having been born as a result of the doctors’ negligence (failed sterilisation). This is justified on public policy grounds. However, the House of Lord also held additional costs of raising a child with a disability are recoverable as these go beyond what a parent would ordinarily have to incur.

The subsequent Scottish appeal case of McClelland v Glasgow Health Board confirmed the same principles apply in a “wrongful birth” case. If a child is born with a disability and the relevant medical professionals are shown to have breached their duty of care, then the additional cost of raising a child with that disability are recoverable, but not the costs of raising a healthy child.

Meadows v Khan – the question

Meadows v Khan is a recent English High Court decision looking at a child born with both haemophilia and autism. The child’s mother was aware of a risk she was a carrier of haemophilia and did not wish to have a child with this condition. So she requested her GP test her to see if she was a carrier. However, her GP simply tested to see if she had haemophilia. In order to find out if she was a carrier, the GP should have referred to a consultant haematologist. The defendants conceded that not to do so amounted to a breach of the duty of care.

Ms Meadows went on to conceive a son who was born with haemophilia and also suffered from autism. The autism caused additional difficulties in her son’s day to day life. It made it very difficult for him to understand the dangers associated with his haemophilia. He was also unlikely to ever be able to work as a consequence of his autism. The agreed cost of raising a child with haemophilia was £1.6 million. However, the total cost increased to £9 million if the costs relating to his autism were included.

The question for the court was whether or not it was competent for damages to be awarded for a disability which was outwith the scope of the tests which had been negligently carried out.

The claimant’s position –  the ‘but for’ test

The claimant argued she was entitled to all of the costs on the basis of simple “but for” causation. If she had been correctly tested, she would have been advised that she was at risk of giving birth to a child with haemophilia. She would not then have conceived her son so would not have incurred the costs of his autism.

The claimant further relied on two previous English decisions in wrongful birth cases - Parkinson (failed sterilisation) and Groom (delayed pregnancy diagnosis) – where damages relating to disabilities were held to be recoverable, even though the negligent act was not concerned with identifying the disability. As the disability would not have happened if the pregnancies had been prevented or terminated, the NHS was liable to meet the costs.

The defendant’s position – a case ‘too far’

The defendant argued that to allow damages relating to the child’s autism would extend the GP’s duty of care too far. The GP had undertaken to test for haemophilia but had assumed no responsibility in relation to autism. Autism was a risk in any pregnancy and it was not fair to impose liability for this unrelated risk onto the doctor.

Comparison was drawn with Lord Hoffman’s dicta in Caparo Industries v Dickman in 1990 where he suggests a doctor who negligently examines a mountaineer’s knee should not be liable for damages if, on the basis of the doctor’s advice, the mountaineer undertakes a trek which results in a fatal avalanche.

Similarly, Lord Sumption stated last year in Hughes-Holland v BPE Solicitors that the defendant does not become the underwriter of an entire transaction by virtue of having assumed a duty of care for one aspect.  

The decision

Mrs Justice Yip found in favour of the claimant and allowed damages for both the cost of the son’s haemophilia and his autism. The judge concluded that the case was simply one of “but for” causation. The doctor may not have been testing for autism but it is clear that a child with autism would not have been born but for the doctor’s failure to advise of the risk of haemophilia. There was no intervening act or decision of the mother which led to the child’s autism and so, following McFarlane, the mother was entitled to all additional costs relating to her child’s disabilities.

Commenting on Lord Hoffman’s mountaineer example, the judge pointed out that in this case the loss is not nearly as remote or unconnected to the negligence. If the haemophilia had been identified, the pregnancy would have been terminated and no disabilities would have arisen. The case would have been more akin to the mountaineering example if the haemophilia test had been carried out negligently and the child was born without haemophilia but with autism. However, the judge pointed out that it was very unlikely that a mother would even raise an action in such a scenario.

Conclusion

This is an emotive subject and parents may find it difficult to place a financial loss on having a child with a disability. It may feel uncomfortable to see a child they love as in any way a financial liability. They would also require to be clear in court that, but for the breach of duty, they would not have had or would have chosen to terminate the child they now love and care for.

However, where a child has been born with a disability as a result of a doctor’s negligence, it is appropriate and in-keeping with the principles of restorative justice that the negligent party is liable for all costs which are a result of the negligent act. On this basis, the High Court’s decision in Meadows v Khan is a welcome one and it is hoped that the Scottish courts would follow its lead in any similar case north of the border.

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