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Duty of care in wrongful birth

Posted on 30th June 2021 in Medical Negligence

Posted by

Michelle Beckett

Associate and Solicitor
Duty of care in wrongful birth

A recent case has given clarity regarding the extent of compensation that should be awarded where  injuries did not relate to the advice sought from a doctor. The supreme Court considered the extent of a doctor’s duty of care in view of what compensation should be paid.

 

Facts from Meadows v Khan

  • Ms Meadows sought advice from her GP to establish whether she was a carrier of the hereditary haemophilia gene.
  • She was negligently led to believe by Dr Khan that she was not a carrier of this gene and as a result, Ms Meadows was led to believe that any child that she conceived would not have haemophilia.
  • Ms Meadows went on to have a son who was born with haemophilia and autism (unrelated to the haemophilia).
  • Subsequent testing revealed that Ms Meadows was a carrier of the haemophilia gene
  • Had there been no negligence:
    • Genetic testing pre pregnancy would have revealed she was a carrier
    • She would then have undergone fetal testing
    • The testing would have revealed that her baby was affected by haemophilia
    • She would have chosen to terminate the pregnancy.

 

What does the negligent advice mean?

Did the negligent advice that Dr Khan gave Ms Meadows regarding the haemophilia mean:

  1. Dr Khan was liable for all of the costs relating to the child’s disabilities (haemophilia and autism); or
  2. Dr Khan was only responsible for the costs associated with the haemophilia?

In this case, the Court considered some complex issues as to whether the duty of care that a doctor owed was limited to what he/she was being asked to consider or whether it went further than this. 

The short answers to the questions raised are:

  • Dr Khan’s duty of care was limited to the purpose for which he was consulted.
  • Given the above, Dr Khan was only responsible for the costs associated with the haemophilia and, not, the costs relating to the autism as well.

There was comment from one of the Judges that the scope of a clinician’s care may extend to addressing a matter on which they have not been asked for advice in the circumstance where the doctor recognises or ought to recognise that there is an additional matter which “poses a material risk to the patient”. That was not the case here.

 

The law surrounding this area is complex.

It is clear that if you go to a clinician seeking information about specific risks of something untoward happening, the information given is negligent and you suffer an injury as a result then you are entitled to compensation. 

The recent case is particularly relevant when considering sensitive cases such as wrongful birth claims – these are claims by parents where it is argued that the child would not have been born had they been given the appropriate advice. For example:

  • Where a person is pregnant or considering getting pregnant and seeks advice about the risk of their future child suffering from some illness, disease or disability;
  • The advice is negligently given;
  • The child is born with the illness, disease or disability that the person originally sought advice;
  • The person could prove that they would not have continued with the pregnancy had the advice not been negligent
  • This person would be entitled to compensation for the costs of bringing up a child with that illness, disease or disability.

The financial burden of bringing up a disabled child can be extensive, and a successful claim would mean that an appropriate care package could be harnessed to improve both the parents’ and the child’s quality of life.

 

How can Tozers help?

If you or your family have suffered because of medical negligence, we’ll help you to rebuild your life for the future. Contact us today and let us help you.

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