Bill Madden, Slater & Gordon - Wrongful Birth Damages (paper)


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Bill Madden, National Practice Group Leader – Medical Law, Slater & Gordon delivered this paper at the 2013 Obstetric Malpractice Conference. This is the only national conference for the prevention, management and defence of obstetric negligence claims.

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Bill Madden, Slater & Gordon - Wrongful Birth Damages (paper)

  1. 1. 1 Wrongful birth damages IIR 5th Annual Obstetric Malpractice Conference Melbourne 2013 The recent decision of Waller v James1 involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults.2 Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities.3 The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them.4 The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.5 By Bill Madden, National Practice Leader, Medical Law, Slater & Gordon. With thanks to Tina Cockburn, Associate Professor, QUT Faculty of Law, who co-authored versions of this paper submitted for publication including publication by the Journal of Bioethcial Inquiry. Slater & Gordon represented the plaintiffs in Waller v James in its most recent Supreme Court of New South Wales hearing, but not in the proceedings which found their way to the High Court of Australia 1 [2013] NSWSC 497 2 Above, at [70]. 3 Above at [71] – [73]. 4 [5]. 5 At [238], the trial judge held that the plaintiffs had failed to establish that the child’s CSVT was caused or materially contributed to by the ATD inherited from the father.
  2. 2. 2 1 The litigation history In 2006 Waller v James,6 with Harriton v Stephens7 , came before the High Court for consideration of the availability of a wrongful life damages claim by the child Keeden. The High Court held by majority that the damage alleged to have been suffered by the child Keeden, life with disabilities, was not such as to be legally cognisable in the sense required to found a duty of care8 . The 2013 decision in Waller v James9 involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The Waller v James litigation pre-dated the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). The case was therefore decided according to common law principles.10 2 Duty of care Justice Hislop referred11 to the High Court’s statement as to the nature of the duty owed by a medical practitioner in Rogers v Whitaker: “The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.”12 Justice Hislop found that “the question of the potential inheritability of ATD was of significance to the plaintiffs. It was a matter of which the plaintiffs should have been informed.13 ” His Honour then concluded that the defendant’s duty of care to the plaintiffs extended to either obtaining the necessary information so that he could properly advise the plaintiffs himself or otherwise referring them to an appropriate genetic consultant (and if necessary following up on that referral).14 6 [2006] HCA 16, (2006) CLR 136. 7 Harriton v Stephens [2006] HCA 15, (2006) 226 CLR 52. 8 Waller v James [2006] HCA 16, (2006) CLR 136 per Crennan J at [81]. 9 [2013] NSWSC 497 10 [9] 11 [58] 12 [1992] HCA 58; (1992) 175 CLR 479 at 483 13 [121] 14 [77]
  3. 3. 3 3 Breach of Duty The defendant was in breach of his duty of care because he had not taken steps to: make enquiries of the plaintiffs as to their knowledge about the inheritability of ATD; to inform them clearly and firmly of the purpose of the referral and its desirability; and to enquire whether they wished to be referred to a genetic consultant or geneticist for appropriate information.15 Justice Hislop concluded: “In my opinion the defendant did not raise with the plaintiffs the potential inheritance of ATD nor did he adequately explain to the plaintiffs the purpose of the referral with the consequence the plaintiffs did not seek to contact Ms Duggan after the failure of the first attempt.” Although the plaintiffs alleged that the mode of referral, that is the use of a ‘post it note’ to convey the contact details of the geneticist, Ms Duggan, was not “proper” and indicated to the plaintiffs that the matter was of little significance,16 Justice Hislop held that this did not amount to a breach of duty because writing the contact details on the ‘post it note’ achieved its purpose, that is it provided the plaintiffs with the means of contacting Ms Duggan to make an appointment to see her17 . As the referral was not to a specialist medical practitioner there was no need for a formal referral, and the note did in fact achieve its purpose because the second plaintiff did telephone Ms Duggan at the telephone number on the post it note.18 His Honour concluded: “The problem in the present case was in the failure to properly explain the reasons for the referral, not in the use of the post it note. In the absence of an adequate explanation the use of the post it note suggested the referral was of less importance than the application for further blood and semen tests which unlike the referral to the genetic consultant were noted at the end of the defendant’s consultation notes and were accompanied by printed application forms.19 ” His Honour noted that the defendant did not follow up the referral20 and referred to the defendant’s evidence that he expected the plaintiffs to consult with Ms Duggan, and that if he found out that they had not seen the genetic counsellor he “would have been surprised and would want to know why.”21 The trial judge held that It was also the duty of the defendant, whilst the doctor/patient relationship continued, to ascertain if such consultation had taken place and if it had not to make further inquiry as to the reason why the consultation had not occurred and to reinforce the reasons why it would be desirable to consult with the genetic consultant or a geneticist. .22 15 [124] 16 [148] 17 [150] 18 [150] 19 [151] 20 [153] 21 [155] 22 [90]
  4. 4. 4 4 Causation As to causation, His Honour made findings that: a) If the plaintiffs had been properly advised by Dr James they would have gone to see the geneticist23 ; b) While most reasonable people, even after the advice of the geneticist would have proceeded with the pregnancy, given the concerns which had been expressed by the plaintiffs as to the inheritance aspects of ATD, the plaintiffs would not have proceeded elected to have Keeden.24 This finding was sufficient to establish this aspect of causation as the test as to what the plaintiff would have done if properly informed is a subjective one, taking into account “objective factors, particularly the attitude and conduct of the plaintiffs at or about the time when the breach of duty occurred”;25 and c) The plaintiffs failed to establish that the CSVT was caused or materially contributed to by the ATD.26 Accordingly, causation was not established so it was unnecessary to consider normative questions as to whether the defendant should be held liable for the consequences of his acts and omissions. The plaintiffs therefore failed in their claim. His Honour concluded: “In my opinion, the plaintiffs have not established their loss was so connected with the defendant’s fault that “as a matter of ordinary common sense and experience it should be regarded as a cause of it” The onus of proof rested with the plaintiffs. It was not discharged.”27 In any event, His Honour also found that the harm suffered by the plaintiffs was not within the scope of the duty owed by the defendant, as it was caused by an event which was unforeseeable.28 Furthermore, the harm for which recovery was sought, namely the consequences of the CSVT, was not reasonably foreseeable29 and therefore the loss sought to be recovered was too remote.30 5 Contributory Negligence Although not necessary to decide given the causation finding adverse to the plaintiffs,31 Justice Hislop noted that the failure of the plaintiffs to enquire as to the purpose of the referral may have amounted 23 [174] 24 [215] 25 [215] 26 [238] 27 [260] 28 [263] 29 [267] 30 [268] 31 [272]
  5. 5. 5 to contributory negligence, as “a plaintiff is required to take reasonable care for his or her own safety.32 ” He said: “An appropriate course for the plaintiffs, taking reasonable care in their own interests and before discarding the referral would have been to inquire of the defendant as to the purpose of the referral. This aspect may be relevant to contributory negligence but would not defeat the plaintiff’s primary claim.33 ” 6 Assessment of damages for wrongful birth The claim by Keeden’s parents for damages for wrongful birth, was heard some 10 years after the decision of Cattanach v Melchior34 , in which the High Court confirmed the recoverability of damages for the costs of raising a child. In that case Justices McHugh and Gummow noted that the harm which is compensated in such cases is not the unplanned child, but “the burden of the legal and moral responsibilities which arise by reason of the birth of the child”.35 Despite the passage of some ten years since Cattanach was decided, a number of aspects relating to the assessment of ‘wrongful birth’ damages had not been the subject of a comprehensive court ruling. Following Cattanach, New South Wales36 , Queensland37 and South Australia38 amended their civil liability legislation – each in a slightly different way. Each of those jurisdictions seeks to preclude recovery of the costs ordinarily associated with rearing or maintaining a child. New South Wales goes a little further by also precluding a claim for any loss of earnings by the claimant while the claimant rears or maintains the child. None expressly refer to the provision of past and future ‘gratuitous’ care, and none address any limitation on recovery of damages based on the age of the child, the parental income or benefit offsets. The decision in Waller v James39 was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases, however, 32 [145] 33 [147] 34 [2003] HCA 38, by majority McHugh, Gummow, Kirby & Callinan JJ. Gleeson CJ, Hayne & Heydon JJ dissenting. 35 [2003] HCA 38 at [67] 36 Civil Liability Act 2002 (NSW), section 71. 37 Civil Liability Act 2003 (QLD), section 49A, 49B. 38 Civil Liability Act 1936 (SA), section 67. 39 [2013] NSWSC 497
  6. 6. 6 given the finding on causation adverse to the plaintiffs,40 the trial judge held that it was unnecessary to determine the quantum of damages.41 Hislop J did, however, make some comments in relation to the assessment of damages, including issues relating to the costs of raising the child. Given the trial judge’s determination, in the circumstances of the particular case, that a causative link was not proven by the plaintiffs42 , and His Honour’s stated mindfulness of his role as a trial judge, a cautious approach to the determination of the damages issues was adopted. Subject to appellate authority, the following general propositions by way of response to the damages issues raised in the circumstances of Waller v James as to the assessment of damages in wrongful birth cases can be drawn from the judgement: a) At first instance the claim was limited to the period up to 18 years. Any entitlement beyond the age of legal majority was subject to policy considerations, and further development of the law.43 b) On the facts of the particular case, and in particular, as the plaintiffs wanted a child, the ordinary costs of raising Keeden were not recoverable.44 c) Gratuitous care provided by the parents should be compensation by way of award for lost wages, though this also is subject to policy considerations.45 The provisions of the Civil Liability Act 2002 (NSW) which impose rate, caps and exclude the award of interest in Griffith v Kerkemeyer claims are not retrospective in operation.46 d) Future paid care may be recoverable, subject to credible evidence substantiating the claim, and, if a “pragmatic approach” is adopted, may not be limited by parental income.47 e) Subject to the application of relevant statutory entitlements and provisions requiring refund of benefits and payments, the general law in relation to offsets will apply. Therefore any receipts or entitlements will generally be taken into account by way of offset in the assessment of the damages award to ensure that the plaintiff does not receive and retain double compensation for the same loss or expense.48 f) The economic loss claim in respect of raising and caring for the child is not a standalone claim, but rather is properly categorised as part of the total damages claim for damages for personal 40 At [238], the trial judge held that the plaintiffs had failed to establish that the CSVT was caused or materially contributed to by the ATD. 41 [273] 42 [260] 43 [284] 44 [289] 45 [326] 46 [328]; [333] 47 [340] 48 [296]
  7. 7. 7 injury, therefore the 3% discount rate in Todorovic v Waller applies.49 The provisions of the Civil Liability Act 2002 (NSW) which impose a 5% discount rate are not retrospective in operation.50 The decision in Waller v James has provided limited guidance in respect of the principles governing the assessment of damages in wrongful birth claims. It is clear that the law in this area is still developing. In particular, further articulation of the underlying rationale and the relevant policy considerations is required. ***** 49 [309] 50 [309]