A long-running battle over the extent of the liability of a GP who told a patient she was not a haemophilia carrier but went on a have a son with the disease has been decided by the Supreme Court.
The ‘wrongful birth’ case Khan v Meadows had previously been heard in the High Court in 2017, which was told that Ms Meadows’ son had also been diagnosed with autism which made the haemophilia more difficult to treat.
In that case, the Judge found Dr Hafshah Khan liable for the costs associated with both conditions and awarded Meadows £9 million. This was overturned in the Court of Appeal which said Khan was only liable for the costs associated with the boy’s haemophilia.
The Supreme Court handed down its judgment last week and agreed with the Appeal judges that Khan should not be liable for the costs relating to the child’s autism.
Lord Hodge and Lord Sales said that the law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy. It followed that Dr Khan is liable only for the costs associated with the care of of the child insofar as they are caused by his haemophilia.
Simon Towler, a clinical negligence specialist solicitor at Shoosmiths, is experienced in dealing with wrongful birth claims, and the particularly sensitive legal and emotional difficulties that they bring.
“The decision on whether to have a family, and the size of that family, is of course a very personal one. Where that decision is adversely affected by negligent medical advice or treatment, then a wrongful birth claim can arise.”
In Meadows v Khan, the mother who was the carrier of a gene which could give rise to haemophilia, a disease where the ability of the blood to coagulate is severely reduced, sought advice from her GP Dr Khan as she was worried about the possibility that any child would be born with the disease. She was wrongly advised, after tests, that this would not happen.
Simon Towler suggests that the key question to ask here was should the doctor compensate for the costs of bringing up a child with haemophilia and autism, or just the haemophilia?
Even though the mother would not have gone through with the pregnancy at all if the advice had been correctly given, the Supreme Court ruled that the correct measure of compensation was for the additional costs of bringing up a child with haemophilia alone. Had the risk of haemophilia not been a factor, the mother would have gone through with the pregnancy, and her child, on the balance of probability, would have had autism.
A significant previous case was McFarlane v Tayside Board of Health (2000) which limited the extent of liability. It held that if negligent treatment or advice (in this case a failed vasectomy) led to the birth of a healthy child, then the claim was limited to the pain and suffering caused by the pregnancy and childbirth. The costs of bringing up that healthy child were not allowed.
However, in Parkinson v St James and Seacroft University Hospital NHS Trust (2002) a negligently performed sterilisation led to the birth of a child with disabilities. The additional costs of bringing up a child with disabilities, over and above the costs of raising a healthy child, were allowed.
In other cases, claims have been allowed where the negligent treatment, for example negligently performed fetal scans, prevented the option of making the very difficult and personal decision not to proceed with the pregnancy that would result in the birth of a severely disabled or life-limited child.
Once again, these claims included the cost of bringing up and caring for children with significant health problems over and above the cost of raising healthy children.
Simon Towler notes that, while Meadows may have not been successful in all of her claim, wrongful birth claims generally can provide vital financial assistance for affected families. He has acted for two women where scans were not interpreted properly; one failed to pick up cardiac defects and the other trisomy 13, a chromosomal abnormality which is life-limiting. As a result, both women were not given the option of termination, and were awarded compensation.
“The benefit of bringing a successful claim in this setting is that the child will have access to help and equipment that otherwise may not be available, and this will help the family help their child to enjoy life to the full.”
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024