There is some disappointment for parents seeking damages in wrongful birth cases following a new decision of the English Court of Appeal.
In Khan v MNX the appeal court has overturned the original decision of the High Court (discussed by our Head of Medical Negligence Robbie Wilson in a previous article), deciding that one of the health conditions suffered by the child fell outwith the scope of the hospital’s duty of care.
The implications of this decision are discussed below and we analyse the position for similar such pursuers in Scottish medical negligence cases.
Ms M was aware of a risk she was a carrier of haemophilia. She did not wish to have a child with this condition. She asked her GP test her to find out if she was a carrier. However, her GP only tested to see if she had haemophilia. In order to find out if she was a carrier, the GP should have referred Ms M to a consultant haematologist. The defendants did concede that not to do so amounted to a breach of the duty of care.
Ms M went on to conceive a son who was born with haemophilia. He 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.
Following established case law, it was accepted by all parties that damages could not be claimed for the whole costs of raising a child born as a result of a breach of duty, rather it was only the additional costs associated with any disability which could be claimed.
The concept of ‘but for’ causation
The question for the High Court at first instance 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. In other words, were damages restricted to the costs relating to haemophilia or could the costs relating to autism also be included?
At this stage, the judge held that Ms M was entitled to damages related to both conditions. The judge based her decision on the standard concept of “but for” causation. Put simply, if the defendant had carried out her role correctly, Ms Meadows would have known she was at risk of having a child with haemophilia and would have terminated the pregnancy. But for the breach of duty, the child would never have been born and Ms M would not have incurred the cost of both the haemophilia or autism.
Loss must be within the scope of the defendant’s duty
In the appeal of the first instance decision court brought by Doctor K, the Court of Appeal held that Dr K was liable only for the loss associated with the child’s haemophilia. In doing so, the court adopted a very different starting point from that of the High Court.
The Court of Appeal started by ascertaining the scope of Dr Khan’s duty of care. The focus of the consultation, advice and genetic testing was directed at the question of whether or not a child would be born with haemophilia. It was not more generally about whether the respondent should become pregnant.
The Court of Appeal therefore held that the scope of the risk which Dr K had accepted was limited to the losses arising out of the child’s haemophilia. In the words of Lady Justice Davies: “The scope of the appellant’s duty was not to protect the respondent from all the risks associated with becoming pregnant and continuing with the pregnancy.”
Commentary - a disappointing decision for pursuers
The Court of Appeal’s decision means that even where there are losses which are a direct result of a breach of duty, not all of those losses are necessarily recoverable. In its decision, the Court of Appeal states: “The risk of a child being born with autism was not increased by the appellant’s advice.” As a matter of factual causation that is not true; if Ms M had received the correct advice, she would not have had the child so the risk of a child being born with autism obviously did increase as a result of the incorrect advice.
The court also sought to justify its decision by stating: “The loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism.” This argument appears to put the cart before the horse. It could be argued with some force that the question should not have been: what loss would have been sustained if the negligence had not occurred? It should instead have been the simpler: what loss was incurred because the negligence did occur?
The Scottish positon
If the Scottish courts were to follow this decision, the fundamental issue which pursuers should take from this case is that even when a child is born with a number of disabilities, the damages which are recoverable in a wrongful birth action are limited to those which the negligently performed test, screening or procedure should have prevented. Parents in the same position as Ms M will have to bear the additional costs of any other disability themselves.
For further information on wrongful birth actions and other medical negligence issues, please contact David Blair.