Wednesday, January 9th, 2019 posted in Expert Witness, Inspire News, Paul Sankey

Negligent Advice and a Wrongful Birth: a GP’s Liability

~ by Paul Sankey, Enable Law

Khan v MNX[1]

A decision of the Court of Appeal of Khan v MNX considered the right approach in wrongful birth cases. It also throws light on the scope of a doctor’s duty to a patient.

The facts

A GP gave negligent advice to a patient. He told her that according to blood tests she did not carry the haemophilia gene. In fact those tests showed only that she was not herself haemophiliac. They did not rule out her being a carrier, for which she would need genetic testing. Such tests would in fact have shown that she carried the gene. Once she became pregnant, she would then have had tests to see whether the foetus was haemophiliac. Had those tests been positive for the condition she would have terminated her pregnancy. Reassured by the negligent advice she did not have further tests (and of course she did not know they were necessary). She became pregnant and gave birth to a baby with haemophilia. He was also later diagnosed as autistic. She claimed damages from her GP to include not only the costs arising from bringing up a child with haemophilia but also those arising from the autism.

The law: damages for wrongful birth

The 2000 case of McFarlane v Tayside Health Board[2]involved a failed sterilisation. The sterilisation was conducted negligently and the woman became pregnant. She claimed and was awarded damages. She sought the costs of bringing up her child. She was only awarded damages to reflect the loss associated with pregnancy. She was not allowed to recover the costs of bringing up a normal, healthy child.

In 2 later wrongful birth cases women became pregnant despite sterilisations. Given the decision in McFarlane, they could not recover the ordinary costs of bringing up a normal child. However they were awarded the extra costs generated by their child’s disability. In the first[3], a sterilisation was performed negligently, the woman became pregnant and her child had severe congenital abnormalities. In the second[4], at the time of the sterilisation, the woman turned out to have been 6 days pregnant. When she was subsequently seen by her doctor having missed her period and suffering abdominal pain, the doctor was negligent in failing to consider whether she was pregnant and examine her. Had she known of the pregnancy she would have had a termination. 4 weeks after birth the baby was found to have salmonella meningitis. The cause was exposure to bacteria during delivery. Both women succeeded in their claims.

These claims are unusual. People are only normally awarded damages where a breach of duty causes harm. Here the harm – the children’s disabilities – was not caused by the doctor. The cause was genetic in one case and a foreseeable event related to delivery in the other. However the courts awarded damages because the doctors had taken responsibility for protecting their patients from an unwanted pregnancy. The losses arising from the children’s disabilities was foreseeable. They flowed from the unwanted pregnancy. The women were therefore entitled to recover.

Khan v MNX: The claim

The trial judge thought she was.

 The defendant invited the judge to make a distinction between cases where the mother did not want a pregnancy at all (such as the sterilisation cases) and cases like this where the mother wanted to become pregnant but did not want a child with a particular disability, in this case haemophilia.

The judge rejected that distinction. Whether the breach of duty (the negligent advice) had caused the harm (not just haemophilia but autism) was addressed by the ‘but for’ test. The question to ask was: ‘would the woman have suffered the loss but for the negligent advice?’ But for the negligent advice, the baby would not have been born. The woman would have terminated her pregnancy. She would not have given birth to a child with either haemophilia or autism.

In reaching her conclusion, she followed the House of Lords decision in Chester v Afshar[5]. There, a spinal surgeon had breached his duty by failing to warn of the low risk of cauda equina damage from surgery. The court had found that, had she been properly warned, the patient would not have agreed to run the risk there although she may nevertheless have done so at a later date. She underwent the surgery and unfortunately suffered cauda equina damage.

The Court of Appeal in Chester v Afshar dismissed her claim. It held that because the injury was not caused by the surgeon’s breach of duty. It was liable to occur despite the surgeon exercising an appropriate level of skill. That damage was not caused by the failure to warn even though that failure was a breach of duty. When the case reached the House of Lords, the majority disagreed. It awarded damages. The rational for its decision was based on the scope of the surgeon’s duty. That duty was to warn of the risk of cauda equina. He had failed in that duty. The very risk of which he should have warned materialised. The injury fell within the scope of his duty to warn. The injury could in that sense be considered to have been caused by the breach of duty.

 Returning to Khan v MNX, Mrs Justice Yip took the view that autism was an inherent risk of pregnancy in the same way that injury to the cauda equina was an inherent risk of spinal surgery. There was still difference. In Chester v Afshar the risk which materialised was the very risk of which the surgeon failed to warn. In Khan v MNX the advice concerned haemophilia and not autism. However the doctor’s duty was ‘to provide the claimant with the necessary information…to allow her to terminate any pregnancy affected by haemophilia, as this pregnancy was’.

The claimant was therefore awarded damages not only for the additional costs generated haemophilia but those arising generated by autism.

The Appeal

 The doctor appealed and the case reached the Court of Appeal. The doctor conceded that the ‘but for’ test was made out and also that the injury was a foreseeable consequence of the breach of duty. However the consultation was to establish whether the mother carried the haemophilia gene. It was not to consider whether she should become pregnant and what the consequences of a pregnancy might be. Any decision about a future pregnancy involves factors beyond whether the baby might have haemophilia. The circumstances were different from the sterilisation cases. The doctor’s duty should therefore be limited in scope to the issue which was the subject of the consultation.

 In South Australian Asset Management Corporation v York Montague Ltd (“SAAMCO)[6]Lord Hoffman had considered what the issue of how far a duty of care in the provision of information should be limited in scope and set out the test. Where someone was under a duty to take reasonable care to provide information and another person would rely on that information in deciding on a course of action, the scope of the duty was limited. If the advice was negligent, the advisor was responsible not for all the consequences of the course of action but only those which were the foreseeable consequences of the information was wrong. This was a test designed to limit liability to certain consequences and not others.

Returning to Khan v MNX, the Court of Appeal took a different approach to that of the trial judge regarding the scope of the GP’s duty. It considered Chester v Afshar. The claimant in Chester succeeded because the injury was within the scope of the duty of care. Defining the scope of her surgeon’s duty was the factor which enabled her to recover. However defining the scope of the duty could also limit the right to recover despite the ‘but for’ test being met. As Lord Hope had said 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 GP’s duty here was limited in scope. It was not to protect the mother from all the risks of pregnancy. It was to protect her from the risks of carrying the haemophilia gene.

The Court of Appeal considered 3 questions.

  1. What was the purpose of giving information/advice which was allegedly negligent? The purpose was to enable her to make a decision about the risks having a child with the haemophilia gene. It was not to address other risks of pregnancy, such as autism.
  2. How should risk be apportioned given the nature of the advice and information given? In other words, what risks should the doctor assume responsibility for and what risks were the patient’s responsibility? The answer was that the doctor was liable for the risk of haemophilia in the absence of foetal testing and should a pregnancy continue. The mother was liable for the risks of other potential complications.
  3. What loss would the mother have suffered had the doctor’s advice been correct? Had the advice had been correct, the child would still have had autism.

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

Comments

This unusual case demonstrates the causation in fact is not the same as causation in law. Event B may not have happened but for negligent Event A. As a matter of fact Event A causes Event B. The ‘but for’ test is met. This does not necessarily mean the claimant will establish that Event A caused Event B as a matter of law. There are a number of mechanisms by which causation in law is limited. In Khan v MNX Event B fell outside the scope of the GP’s duty as a matter of law. Because the purpose of the consultant was limited in scope to advising about a specific risk (whether the mother carried the haemophilia gene), the doctor was not liable when a different risk (autism) materialised.

[1]Dr Hafshah Khan v MNX [2018] EWCA Civ 2609

[2]McFarlane v Tayside Health Board [2000] 2 AC 59

[3]Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266

[4]Groom v Selby [2002] PIQR P18

[5]Chester v Afshar [2005] 1 AC 134

[6]South Australian Asset Management Corporation v York Montague Ltd (“SAAMCO) [1997] AC 191

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