Wrongful birth: damages for an unrelated disability

Since moving away from home and theoretically becoming an adult, it has always amazed me how our parents had the time to: 1) look after us; 2) go to work and 3) have something vaguely representing a life of their own (otherwise known as BC – Before Children). Questioning my own parents on the subject directly, I was reliably informed that raising me involved a high proportion of late nights, severe lack of sleep and a heavy reliance upon my grandparents. A common theme from speaking to any friend’s parents is that having a child, at times, was like a black hole, in which money just disappeared!

So, this begs the question, how on earth do you value the cost of raising a child? And what happens if that child was born with a disability because of negligent advice? Should a defendant be responsible for those costs? Just how far does a doctor’s duty go?

In the case of Meadows v Khan [2017] EWHC 2990 (QB) Mrs Meadows consulted her doctor with a view to avoiding the birth of a child with haemophilia. Mrs Meadows was aware that her nephew had been born with the condition and sought to avoid conceiving a child who would also suffer from its effects. Accordingly, she consulted her GP to establish whether she was a carrier of the haemophilia gene. Her GP arranged for blood tests; however, the requested tests were those which established whether the patient had haemophilia and could not confirm if Mrs Meadows was indeed a carrier. To establish whether an individual possesses the haemophilia gene, genetic testing would have had to have been arranged.

Mrs Meadows then returned to her GP practice where she was seen by the defendant GP, Dr Khan. Mrs Meadows was informed by Dr Khan that her blood tests were normal. Because of that advice, Mrs Meadows believed that any child she would go on to bear would not be born with haemophilia.

Some four years later, Mrs Meadows became pregnant. She gave birth to her son Adejuwon, in September 2011 and shortly after his birth Adejuwon was diagnosed with haemophilia. Mrs Meadows was subsequently referred for genetic testing which confirmed she was indeed a carrier of the haemophilia gene. Had Mrs Meadows been tested when she originally contacted her GP in 2006, she would have known she was a carrier before she became pregnant. In those circumstances, Mrs Meadows would have undergone fetal testing for haemophilia. In Adejuwon’s case, this would have revealed the fetus was affected and Mrs Meadows would have chosen to terminate the pregnancy.

Subsequently, Adejuwon was also diagnosed with autism. Adejuwon’s haemophilia treatment has been complicated by his autism as he does not understand the benefits which treatment offers.

The question before the court was whether Mrs Meadows could recover for the additional costs of raising a child with autism, or just the costs associated with his haemophilia. Mrs Justice Yip in her judgment praised both parties for their sensible approach in relation to a highly emotional case as all other issues had been resolved by agreement, including the quantum in relation to both scenarios.

In considering Mrs Meadows’ case, Mrs Justice Yip undertook a review of the relevant case law surrounding, so called, “wrongful birth claims”. She noted that since the case of McFarlane v Tayside Health Board [2000] 2 AC 59 it had been a matter of public policy that claimants could only claim for the costs of raising a disabled child. Furthermore, if it was the negligence which led to the conception or the continuation of the pregnancy a claimant is entitled to recover for any disability arising from genetic causes or foreseeable events during pregnancy (Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266).

In Mrs Meadows’ case, there was no argument between the parties that Adejuwon’s autism was nothing other than a natural and foreseeable consequence; however, the dispute lay as to whether the scope of a doctor’s duty of care extended to the occurrence of a condition upon which the defendant was not consulted and whether it was fair, just and reasonable to hold Dr Khan liable for the costs of Adejuwon’s autism.

In her decision, Mrs Justice Yip referred to the SAAMCO case and Lord Hoffman’s analogy of the mountaineer and the avalanche. It was agreed in Mrs Meadows’ case that the risk of autism was a risk that existed in every pregnancy and that risk had not been increased, or lessened, by Dr Khan’s failure to properly manage Mrs Meadows’ risk of having a child with haemophilia. Mrs Justice Yip considered that Mrs Meadows’ case was simply a matter of the “but for” causation of test, no mountaineers required. “But for” Dr Khan’s negligence the testing would have shown that the fetus was affected and Mrs Meadows would have terminated the pregnancy. Mrs Meadows’ case was distinguishable from the unfortunate mountaineer as autism was associated with the pregnancy whereas the avalanche was not associated with the mountaineer’s expedition. Accordingly, Mrs Meadows was permitted to recover for the costs of raising a child with both autism and haemophilia as the pregnancy and the birth with indivisible. This was because the purpose of the consultation with Dr Khan was to decide about whether to have a child and once that child is born there can be no separation of the effect of different disabilities or conditions.

What made this case particularly interesting to this writer were Mrs Justice Yip’s comments surrounding the alleged increased costs this claim may cause to GPs’ indemnity premiums. Here Dr Khan’s legal team sought to argue that if the court were to allow for the recoverability of the costs associated with Adejuwon’s autism, doctors may need to purchase indemnity cover which allows for coincidental loss. Mrs Justice Yip quite neatly kicked this argument into touch by stating that whilst the rising costs of GP indemnity premiums are a legitimate matter of public concern, Mrs Meadows’ case was rare and would not open the floodgates to many other claims.