Supreme Court confirms scope of duty of care in wrongful birth case
Khan v Meadows [18.06.21]
On 18 June 2021, the Supreme Court unanimously dismissed Ms Meadows’ appeal and confirmed losses outside the scope of duty of a doctor’s care are not recoverable.
The appellant, Ms Meadows, is mother to a child with severe haemophilia and autism. In 2006 Ms Meadows asked Dr Khan (a GP) to establish whether she carried the haemophilia gene. It was confirmed she was not haemophiliac, however it was not correct to confirm that she did not carry the gene or that any child she had would not have haemophilia. Further testing should have been arranged. Had Ms Meadows known this, she would have undergone foetal testing for haemophilia when she was pregnant in 2010, which would have revealed the foetus was affected. She asserted she would then have terminated her pregnancy.
Ms Meadows brought a claim for wrongful birth arguing Dr Khan was liable for all the consequences of the pregnancy, including her child’s autism. The issue at trial and on appeal was whether the doctor’s liability was limited to losses associated with the child’s haemophilia (agreed at £1.4 million) or for the losses associated with the child’s haemophilia and autism (agreed at £9 million).
High Court decision
In the High Court, Mrs Justice Yip held Ms Meadows was entitled to losses relating to the child’s haemophilia and the child’s autism, albeit an unrelated condition.
The judge accepted the autism arose out of this pregnancy which would have been terminated but for the defendant's negligence. In considering the landmark case of Chester v Afshar , she accepted that “the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon's duty to warn.” However, the misfortune which was the focus of the duty in this case was haemophilia, not autism.
Court of Appeal decision
In failing to apply the “scope of duty test” as set out in South Australian Asset Management Corporation v York Montague Ltd  (SAAMCO), the Court of Appeal held the judge at first instance had erred in finding Dr Khan liable for a loss that was not within the scope of her duty. The development of autism was a coincidental injury and the parents were only entitled to recover losses associated with haemophilia.
The court accepted the appellant’s identification of three relevant questions (applying SAAMCO), set out at paragraph 19 of the judgment which asked (1) what the purpose of the advice was (2) what the appropriate apportionment of risk was taking account of the nature of the advice and (3) what losses would have occurred in any event if the advice was correct.
The court held given the advice sought and the appropriate testing which should have been provided to Ms Meadows “the scope of duty test identified by Lord Hoffman in SAAMCO is not only relevant but determinative of the issues which have to be addressed by a court.” Dr Khan was not liable for costs associated with the child’s autism because that loss was not within the scope of the risks she had undertaken to protect Ms Meadows against (i.e. haemophilia) and so was not within the scope of her duty of care.
Supreme Court decision
The Supreme Court considered (in the context of clinical negligence claims) whether the approach in SAAMCO should be followed and how that approach should be applied.
The court held Dr Khan’s advice was limited to whether Ms Meadows was carrying a haemophilia gene and, as such, only losses causally connected to that were within the scope of her duty. The losses caused by the fact that Ms Meadows was carrying the haemophilia gene are those associated with the haemophilia which her child now suffers from and do not include costs associated with his autism, which is causally unrelated. The appeal was therefore dismissed.
The court did not accept submissions that the scope of duty principle in SAAMCO does not apply to clinical negligence claims. A six-step model was applied to the facts of the case [para 67-68]:
|“First, the economic costs of caring for a disabled child are clearly actionable. Second, Dr Khan’s advice was concerned with a specific risk, the risk of a child having haemophilia for which Dr Khan’s owed a duty of care to Ms Meadows. Third, Dr Khan was in breach of her duty. Fourth, as a matter of factual causation, there was a causal link between Dr Khan’s mistake and the birth of Adejuwon. Fifth, the answer to the scope of duty question gives a straightforward answer to the duty nexus question: the law did not impose on Dr Khan any duty in relation to unrelated risks (such as autism) which might arise in any pregnancy…sixth, there being no questions of remoteness, other effective cause or mitigation of loss, the law imposes on Dr Khan responsibility for the foreseeable consequences of the birth of a boy with haemophilia, and in particular the increased cost of caring for a child with haemophilia.”|
In this case, the law did not impose on Dr Khan a duty in relation to unrelated risks which might arise in any pregnancy of Ms Meadows. It follows that Dr Khan can only be liable for costs associated with care of the child insofar as they are caused by haemophilia.
In considering SAAMCO, Lord Burrows concluded (at para 77 (i)-(iii)) the purpose of the advice is centrally important. Ms Meadows approached Dr Khan to ascertain whether she had the haemophilia gene and what the impact of that would be if she became pregnant. In light of that, “it was fair and reasonable the risk of the child being born with haemophilia should be allocated to the doctor; but the risk of the child being born with autism should be allocated to the mother”.
This judgment will no doubt come as relief to doctors who may otherwise have been expected to assume responsibility for all the unanticipated, adverse consequences to a patient of negligent medical advice. There may even be wider application in relation to failure to treat a condition, for example, not doing a blood test for a suspected condition which might have revealed and/or prevented another condition but for the breach and it will be interesting to monitor how such cases are decided in light of the scope of duty considerations here.
Read other items in the Australian Healthcare Brief - July 2021