Negligent Advice Leading to Wrongful Birth: How Far is a Doctor Liable?

A recent Court of Appeal case considers the right approach to damages in wrongful birth cases. It also analyses the scope of a doctor’s duty to a patient.

Khan v MNX – What happened?

A GP negligently advised a woman that she was not a carrier of the haemophilia gene based on blood tests. In fact the blood tests only showed that she did not herself have haemophilia (which did not mean that she was not a carrier). She should have been referred for genetic testing. Tests would have revealed that she in fact carried the gene. Having become pregnant she would have undergone tests to see whether the foetus had haemophilia. Had the test been positive she would have terminated the pregnancy. As a result of the negligent advice she did not have testing. Her baby was born with haemophilia. He was later also diagnosed with autism. What was she entitled to claim in the way of damages? Should damages be limited to the costs arising from haemophilia or also those from the autism?

Wrongful birth cases – the Court’s approach

In the 2000 case of McFarlane v Tayside Health Board , a failed sterilisation case, a woman recovered damages in a wrongful birth case. Damages comprised the loss associated with the pregnancy. She was not entitled to the cost of bringing up a normal, healthy child.

In two other wrongful birth cases where women became pregnant despite sterilisation procedures, they could not recover the normal costs of bringing up a child but were awarded the extra costs arising from their child’s disability. In one case , the sterilisation was performed negligently. The child was born with severe congenital abnormalities. In the other , the sterilisation was performed when, unknown to anyone, the woman was 6 days pregnant. When she was seen by her doctor with abdominal pain having also missed her period, the doctor negligently failed to examine her to see whether she was pregnant. The woman would have had a termination had she known of the pregnancy. Her baby was found to be suffering salmonella meningitis 4 weeks after birth from exposure to bacteria during delivery.

Claimants are only normally entitled to damages where the breach of duty causes loss. In neither case had the doctor caused the disability. In one the disability had a genetic cause. In the other it was due to foreseeable events during the pregnancy. However the courts found that the doctor had taken on the responsibility of protecting the patient from an unwanted pregnancy. The loss arising from the child’s disabilities was foreseeable and flowed from the unwanted pregnancy. The women were entitled to recover damages.

Khan v MNX: The claim

In MNX’s case, it was agreed that the Defendant was required to pay for the extra costs of bringing up a child with haemophilia. But was she also entitled to the extra costs arising from the autism?

The trial judge, Mrs Justice Yip, thought she was.

In MNX the doctor invited the judge to distinguish between cases where the mother was not want to have any child (such as the sterilisation cases) and this case, where the mother did not want a child with a particular disability, such as haemophilia.

However the judge rejected that distinction. She applied the ‘but for’ test asking the question: ‘would the woman have suffered the loss (the additional costs of bringing up a child with autism) but for the negligent advice?’ She reasoned that the baby would not have been born but for the doctor’s negligence. The pregnancy would not have continued. The mother would have terminated the pregnancy. She would not have had a child with either haemophilia or autism.

In reaching her view, she followed Chester v Afshar . There, a neurosurgeon had failed to warn of the very low risk from spinal surgery of damage to the cauda equina (the bundle of nerves at the base of the spinal cord). The patient would not have run the risk there and then had she been properly warned, although she may still have done so at a later date. She had the operation and the risk materialised.

The Court of Appeal in Chester v Afshar had held that because the injury was liable to occur whatever the level of skill employed by the surgeon, the failure to warn did not affect the risk and was not the effective cause of the claimant’s injury. There had been a breach of duty but it had not caused the injury. However, a majority of the House of Lords reversed that decision and awarded damages. Its decision was based on the scope of the surgeon’s duty. The surgeon had a duty to warn of that very risk in obtaining consent to surgery. He had failed to do so. The risk had materialised. The injury fell within the scope of the doctor’s duty to warn. In that sense the injury could be regarded as having been caused by the breach of duty.

Mrs Justice Yip reasoned that autism was an inherent risk of pregnancy just as cauda equina injury was an inherent risk of spinal surgery. She accepted that there was a nevertheless difference between the 2 cases. In Chester v Afshar the misfortune which befell the patient was the very misfortune of which the surgeon had failed to warn. In Khan v MNX the misfortune was haemophilia not autism. However the focus of the doctor’s duty was ‘to provide the claimant with the necessary information so as to allow her to terminate any pregnancy affected by haemophilia, as this pregnancy was’.

She therefore awarded damages not only for the additional costs arising from haemophilia but for those arising from autism.

The Appeal

The GP appealed to the Court of Appeal. It was accepted on the doctor’s behalf that the ‘but for’ test was made out and that the injury was the foreseeable consequence of the breach of duty. However it was contended that autism fell outside the scope of the doctor’s duty. The purpose of the consultation had been to establish whether she carried the haemophilia gene. It did not extend beyond that to whether she should become pregnant. That decision involved considering other factors besides whether she carried the haemophilia gene. The risk of her child being born with autism was not increased by the doctor’s advice. The case differed from the sterilisation cases.

Lord Hoffman had set out the test of what amounted to the scope of a duty of care in South Australian Asset Management Corporation v York Montague Ltd (“SAAMCO) . Where a person was under a duty to take reasonable care to provide information on which someone else would decide on a course of action, the scope of the duty was limited. If negligent, he was responsible not for all the consequences of the course of action decided on but only for the foreseeable consequences of the information being wrong. The test was designed to limit liability to certain consequences only.

The Court of Appeal’s approach differed from that of Mrs Justice Yip in relation to the scope of the GP’s duty. It considered Chester v Afshar. There the claimant recovered because the injury was within the scope of the duty of care. Consideration of scope of duty enabled the claimant to recover. However consideration of scope could also restrict the right to recover even where the ‘but for’ test was met. As Lord Hope had commented in Chester v Afshar, ‘damages can only be awarded if the loss which the claimant has sustained was within the scope of the duty to take care’. The scope of the GP’s duty here was not to protect the mother from all the risks of pregnancy but only the risks of carrying the haemophilia gene.

There were 3 relevant issues to consider.

1. What was the purpose of the information/advice which was alleged to have been negligent? The aim was to enable her to make an informed decision about the risks of a child carrying the haemophilia gene but not about the other risks of pregnancy, such as autism.

2. What the appropriate apportionment of risk taking account of the nature of advice and information given? In other words, for what risks should the doctor take responsibility and what risks were for the patient? In the Court of Appeal’s view, the doctor would be liable for the risk of haemophilia had there been no foetal testing and no termination of pregnancy. The mother would take the risks of other potential difficulties of the pregnancy.

3. What loss would have arisen had the doctor’s advice been correct? Even if the advice had been correct, the child would still have been born with autism.

The scope of the doctor’s duty was not to protect the mother from all the risks of pregnancy but only of the risk of carrying the haemophilia gene.

Comments

In cases of wrongful birth – where negligence leads to the birth of a child – the courts have set out the principles as to what a mother can recover. She can recover damages to reflect the fact of pregnancy and labour. She cannot recover the normal costs of bringing up a normal, healthy child. She can recover the additional costs of bringing up a child arising from the child’s disability in some circumstances. Those circumstances are: if the negligence was in advice as to the risks of the pregnancy as a whole; or if it was advice as to a specific risk and that specific risk materialised. The mother cannot recover if the advice concerned a specific risk (such as haemophilia) and a different risk (such as autism) materialised.

The rationale for this distinction is the scope of advice about a particular risk is limited to that risk. So whilst a strict application of the ‘but for’ test might suggest the woman should recover, there are circumstances in which the ‘but for’ test is qualified. In other words, the fact that negligence in fact could be said to have caused loss does not mean that it is necessarily regarded in law as causing the loss.