Slater & Gordon
©Slater&GordonLimited20122CATTANACH V MELCHIOR• In July 2003 the High Court held by a 4:3 majority in Cattanach vMelchior(...
©Slater&GordonLimited20123• Griffiths v Kerkemeyer claim in relation to careprovided to Mrs M• MR MELCHIOR $3000 for loss ...
©Slater&GordonLimited20124• An appeal by Dr Cattanach and the State of Queensland to the Courtof Appeal was dismissed• McM...
©Slater&GordonLimited20125• McHugh and Gummow JJ comment in the case that theexpression „wrongful birth‟ is misleading as ...
©Slater&GordonLimited20126• The Court found that to suggest that the birth of a child wasalways a blessing ignored the wid...
©Slater&GordonLimited20127• Following the decision legislators in NSW, Queensland and SouthAustralia passed laws denying p...
©Slater&GordonLimited20128THE POSITION OVERSEASUNITED KINGDOM• Macfarlane v Tayside Health Board[1999]4 All ER 961 The cas...
©Slater&GordonLimited20129ELEMENTS OF WRONGFUL BIRTHThe broad classes of negligence involved are:a) failure to diagnose pr...
©Slater&GordonLimited201210• The Plaintiff must be able to establish that if the negligencehad not occurred she would have...
©Slater&GordonLimited201211ASSESSMENT OF DAMAGES IN WRONGFUL BIRTH CASES/ THEPENDING CASE OF WALLER V JAMES• Surprisingly ...
©Slater&GordonLimited201212G and M v Armellin [2008] ACTSC 68 (24/7/08)• An IVF case involving a twin pregnancy. The Plain...
©Slater&GordonLimited201213G and M v Armellin [2008] ACTSC 68 (24/7/08) cont:• Quantum was assessed at :• General Damages$...
©Slater&GordonLimited201214• Dr Henman made allowance for :• housing• additional energy costs• clothing• household goods a...
©Slater&GordonLimited201215G and M v Armellin [2008] ACTSC 68 (24/7/08) cont• The Trial Judge accepted that for the Plaint...
©Slater&GordonLimited201216WALLER V JAMES• Waller v James was heard in the Supreme Court of NSW beforeJustice Hislop in Fe...
©Slater&GordonLimited201217WALLER V JAMES cont:WRONGFUL LIFE• The litigation has a long history having come before the Hig...
©Slater&GordonLimited201218WALLER V JAMES cont:• Keeden Waller was born on 10/8/00 with the assistance of IVFtreatment pro...
©Slater&GordonLimited201219WALLER V JAMES cont:• It was alleged by the Wallers that they told Dr James about MrWaller‟s an...
©Slater&GordonLimited201220WALLER V JAMES cont:In the case the major issues relating to the assessment of damages were :1....
©Slater&GordonLimited201221• Should the Defendant be required to pay compensationbeyond the time that the parent‟s legal a...
©Slater&GordonLimited201222WALLER V JAMES cont:(2)Is the provision of gratuitous care by the familyrecoverable?• The Defen...
©Slater&GordonLimited201223• Neither case provides much guidance.• G v K refers to care provided to an injured Plaintiff b...
©Slater&GordonLimited201224WALLER V JAMES cont:(3)Is the recovery of the parents limited by theirincome?• The argument adv...
©Slater&GordonLimited201225WALLER V JAMES cont:(4)Offsets for government assistance• The defendant argued that any governm...
©Slater&GordonLimited201226WALLER v JAMES cont:(5)What discount rate should be applied?• It was argued by the Defendant th...
©Slater&GordonLimited201227HOW ARE DAMAGES ASSESSED FOR A HEALTHY CHILDPREGNANCY COSTS• medical bills, economic loss durin...
©Slater&GordonLimited201228COSTS OF RAISING A HEALTHY CHILD• Statistical evidence can be produced from variousexperts as t...
©Slater&GordonLimited201229COSTS OF RAISING A HEALTHY CHILD cont:• Did the other children or the parents undertake tertiar...
©Slater&GordonLimited201230HOW ARE DAMAGES ASSESSED FOR A DISABLED CHILDEXPERT EVIDENCE• Occupational Therapists, Physioth...
©Slater&GordonLimited201231TYPES OF COSTS INCURRED• wheelchairs, hoists and other necessary equipment forday to day care• ...
©Slater&GordonLimited201232• an integration aid at school, costs of special education,private tutoring• level of supervisi...
©Slater&GordonLimited201233ANTENATAL TESTING /WHAT IS REASONABLE ?In Victoria Section 59 of the Wrongs Act stipulates that...
©Slater&GordonLimited201234• Similar provision applies in NSW, Queensland, South Australiaand Tasmania.• The common law st...
©Slater&GordonLimited201235In wrongful birth cases the usual standard of care in question isthat of :• an obstetrician in ...
©Slater&GordonLimited201236WHAT TYPE OF ADVICE IS PROVIDED TO PREGNANT WOMEN REANTENATAL TESTINGAn example provided by a r...
©Slater&GordonLimited201237The Information Pack included the followinginformation :Combined Screening Test for DownSyndrom...
©Slater&GordonLimited201238Cystic Fibrosis Screening• A brief description of cystic fibrosis• Cells are collected from the...
©Slater&GordonLimited201239Questions1. Who takes the blood for screening and how is it organised ?2. As you won‟t see your...
©Slater&GordonLimited201240• My colleague who is a highly educated, resourceful andorganised person struggled with underst...
©Slater&GordonLimited201241THE FUTUREOne new test which will have a significant impact will be the “Safe T21”Down Syndrome...
©Slater&GordonLimited201242• A doctor whether a GP or obstetrician not offering such testing whencommercially available in...
For further information visitwww.slatergordon.com.au
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The Legal Implications of Failure to Undertake Adequate Antenatal Testing and Wrongful Birth Claims

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Anne Shortall, Principal Lawyer, from Slater & Gordon has presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the website: http://bit.ly/10xh1iO

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The Legal Implications of Failure to Undertake Adequate Antenatal Testing and Wrongful Birth Claims

  1. 1. Slater & Gordon
  2. 2. ©Slater&GordonLimited20122CATTANACH V MELCHIOR• In July 2003 the High Court held by a 4:3 majority in Cattanach vMelchior(2003)215 CLR 1 that the parents of a child, whether disabledor healthy, born as a consequence of medical negligence are entitledto damages for the costs of raising the child.THE DAMAGES AWARDED AT TRIAL:• MRS MELCHIOR $103,672i. Pain and suffering associated with the pregnancy . Unlikely to beawarded today due to the thresholds for establishing permanentimpairment unless the mother is injured during childbirthii. Loss of earning capacityiii. Various expenses including, travelling, medical and household care,maternity clothes
  3. 3. ©Slater&GordonLimited20123• Griffiths v Kerkemeyer claim in relation to careprovided to Mrs M• MR MELCHIOR $3000 for loss of consortium• Costs of raising the child $105,249.33• There was no breakdown in the judgement as to howthese damages were calculated
  4. 4. ©Slater&GordonLimited20124• An appeal by Dr Cattanach and the State of Queensland to the Courtof Appeal was dismissed• McMurdo J in the Qld Court of Appeal [49]” Whilst recognising thatonly the crustiest of curmudgeons is not warmed by the miracle of newlife, I am far from persuaded that the blessing of parenthood shouldprohibit or even limit a claim for the modest reasonable costs ofrearing to majority the baby conceived as the result of medicalnegligence following a failed sterilisation performed for socioeconomic reasons. The free choice of the individual or couple not tobe blessed with a child has been taken away from them throughnegligence and they will consequently suffer economic loss”• The only award in dispute for which special leave to appeal to theHigh Court was granted was the costs awarded for raising the child.• The appellants argued that the arrival of a healthy child should be abenefit to be set off against any damages awarded.
  5. 5. ©Slater&GordonLimited20125• McHugh and Gummow JJ comment in the case that theexpression „wrongful birth‟ is misleading as it is not the birthof the child which is „wrongful‟ but instead the negligent act ofthe doctor:• [68]The unplanned child is not the harm for which recompenseis sought in this action; it is the burden of the legal and moralresponsibilities which arise by reason of the birth of the childthat is in contention. The expression “wrongful birth” used invarious authorities to which the Court was referred ismisleading and directs attention away from the appropriateframe of legal discourse. What was wrongful in this case wasnot the birth of a third child to Mr and Mrs Melchior but thenegligence of Dr Cattanach.”
  6. 6. ©Slater&GordonLimited20126• The Court found that to suggest that the birth of a child wasalways a blessing ignored the widespread use ofcontraceptives in the community and that possiblepsychological harm to the child in question should not justifythe preclusion of recovery of the costs of raising the child.POST CATTANACH V MELCHIOR• The acting PM John Anderson denounced the decision asrepugnant in that it devalued life and treated children ascommodities.• The Premier of NSW Bob Carr argued that it was unacceptablefor the High Court to “dramatically extend the tort ofwrongful birth at a time when obstetricians andgynaecologists were struggling with medical indemnitypremiums
  7. 7. ©Slater&GordonLimited20127• Following the decision legislators in NSW, Queensland and SouthAustralia passed laws denying parents the right to pursue damages forthe costs of raising a healthy child but preserving their rights to claimsuch damages for the additional costs associated with the birth of adisabled child.• (NSW) CIVIL LIABILITY ACT 2002 ss70 and 71• The NSW Civil Liability Act goes the furthest in providing that a Courtcannot award damages for economic loss for the costs associated withrearing or maintaining the child either past of future or any loss ofearnings as a result of rearing the child.• (QLD) CIVIL LIABILITY ACT 2003 ss 49A and 49B• These provisions are limited in application to failed sterilisation andcontraception cases only• (SA) CIVIL LIABILITY ACT 1936 s67• There are no equivalent provisions in the ACT, NT, Tasmania, Victoriaand WA
  8. 8. ©Slater&GordonLimited20128THE POSITION OVERSEASUNITED KINGDOM• Macfarlane v Tayside Health Board[1999]4 All ER 961 The caseinvolved as healthy child and the House of Lords held that the costs ofrearing the child could not be recovered• Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52allowed recovery for the extra costs of raising a disabled childUNITED STATES• Decisions are numerous and divergent as the birth torts are a staterather than federal matter. Some states permit full recovery. Amajority disallow recovery for the costs of raising a healthy child butsome allow recovery of the extra costs of raising a disabled childCANADA• Costs of raising a healthy child are recoverable if the parents haddecided for financial reasons not to have any more children• The extra costs of raising a disabled child are recoverable
  9. 9. ©Slater&GordonLimited20129ELEMENTS OF WRONGFUL BIRTHThe broad classes of negligence involved are:a) failure to diagnose pregnancy within time to allow a terminationb) failure to conduct a sterilisation with due care causing failure of theprocedure resulting in an unwanted pregnancyc) failing to take reasonable care in providing advice as to or supplyingcontraceptiond) failing to diagnose a condition in either the parents or the foetuswhich will result in a disability where if such a condition had beendiagnosed the parents would have elected to terminate the pregnancye) failure to warn of the risk that a properly performed sterilisation mayreverse or fail so that other forms of contraception are abandoned.
  10. 10. ©Slater&GordonLimited201210• The Plaintiff must be able to establish that if the negligencehad not occurred she would have elected to terminate thepregnancyEXAMPLES OF SUCH CASES• failure to undertake testing for Downs Syndrome• failure to detect spina bifida by way of second trimestermaternal screening and/or ultrasound• Failing to detect other major abnormalites on ultrasound• failure to advise as to genetic disorders which will beinherited• misplacement of filshie clips or failure to close filshie clipsproperly• failure to conduct a sterilisation procedure during the courseof a caesarian as agreed• failure to insert implanon correctly or to advise as to theproper use of depoprovera• failure to undertake adequate sperm testing post vasectomy
  11. 11. ©Slater&GordonLimited201211ASSESSMENT OF DAMAGES IN WRONGFUL BIRTH CASES/ THEPENDING CASE OF WALLER V JAMES• Surprisingly there has been minimal case law relating tothe assessment of damages in a wrongful birth casesince 2003.• Gentile & Anor v Ferri[2004] WADC 144 is a caseinvolving a failed application of Filshie clips. Damageswere agreed at past and future costs in the sum of$76,726, special damages $7,686 and $20,000 wasawarded for pain and suffering
  12. 12. ©Slater&GordonLimited201212G and M v Armellin [2008] ACTSC 68 (24/7/08)• An IVF case involving a twin pregnancy. The Plaintiff hadadvised that she did not want a multiple pregnancy andconsented to a single embryo transfer but this was notcommunicated to the embryologist who transferred twoembryos. Healthy twins were born.• The case was not successful at trial as the Trial Judge foundthat it was not Dr Armellin‟s responsibilty to communicate thePlaintiff‟s wishes to the embryologist. It was the responsibilityof other staff to do so.• Despite the Judge‟s finding that Dr Armellin was not negligentshe proceeded to assess quantum.
  13. 13. ©Slater&GordonLimited201213G and M v Armellin [2008] ACTSC 68 (24/7/08) cont:• Quantum was assessed at :• General Damages$55,000• Economic Loss $15,893• Out of Pocket expenses$1,335• Costs of raising the child $234,600• Evidence was given by Professor Paul Henman an expert in thecosts of raising children relied on by the Plaintiff who assessedthe cost of raising the child to age 18 in the sum of $334,000,discounted by 3% this equated to $276,000. A further discountof 15% was made for vicissicitudes resulting in the sum of$234,000
  14. 14. ©Slater&GordonLimited201214• Dr Henman made allowance for :• housing• additional energy costs• clothing• household goods and services• childcare costs to enable employment were significant• health care costs• transport• leisure and personal care• private school fees
  15. 15. ©Slater&GordonLimited201215G and M v Armellin [2008] ACTSC 68 (24/7/08) cont• The Trial Judge accepted that for the Plaintiffs private schooling wasa reasonable and necessary expense as was a separate bedroom foreach child.• Dr Henman also allowed $62,000 for financial support through threeyears of tertiary education. The Trial Judge disallowed this amounton the basis that it was not part of the legal responsibility of a parentto support a child through university• In Cattanach v Melchior the Court did indicate that in certain casescosts of rearing the child may extend to 21 years of age to allow forfinancial support during tertiary education.G and M v Armellin[2009]ACTCA6(1 May 2009)• The decision as to negligence was reversed on appeal and thePlaintiffs were successful
  16. 16. ©Slater&GordonLimited201216WALLER V JAMES• Waller v James was heard in the Supreme Court of NSW beforeJustice Hislop in February 2012 and a decision is pending• The case was issued prior to the Civil Liability Act 2002 and istherefore a common law claim. However it was argued by theDefendant that the costs associated with raising Keeden whichdid not relate to his disability could not be recovered as, butfor, the negligent act the Wallers would have had a healthychild and the associated child rearing expenses.
  17. 17. ©Slater&GordonLimited201217WALLER V JAMES cont:WRONGFUL LIFE• The litigation has a long history having come before the High Courtpreviously in 2006(Waller v James (2006) CLR 136 with Harriton vStephen (2006)226 CLR 52.) At that stage the case was argued as awrongful life claim.• The High Court held (with Justice Kirby dissenting) that a child‟s lifewith disabilities did not qualify as damage and there was therefore nolegal duty to prevent such a life.• Such claims have been allowed in four US states and in Israel, Franceand Holland but are not available in Australia, UK , Canada
  18. 18. ©Slater&GordonLimited201218WALLER V JAMES cont:• Keeden Waller was born on 10/8/00 with the assistance of IVFtreatment provided by Dr James.• Shortly after his birth he suffered a stroke resulting in severebrain damage and multiple disabilities.• It is alleged that the thrombotic stroke had been caused byanti thrombin deficiency which Keeden had inherited from hisfather. The condition causes a propensity for the blood to clotabnormally.
  19. 19. ©Slater&GordonLimited201219WALLER V JAMES cont:• It was alleged by the Wallers that they told Dr James about MrWaller‟s anti thrombin deficiency and that Dr James had handed thema “post it” note with the phone number of a genetics counsellor whichwas in fact a hospital switchboard number.• An unsuccessful attempt was made by the Wallers to contact thecounsellor but was not pursued. Dr James argued that Keeden‟s strokewas not caused by the anti thrombin deficiency and that the referralto the genetics counsellor made by Dr James was adequate.• Breach of duty, causation and damages were all disputed and arguedbefore the Court.
  20. 20. ©Slater&GordonLimited201220WALLER V JAMES cont:In the case the major issues relating to the assessment of damages were :1. Does the claim extend beyond the legalmajority of the child?• This is relevant in a case relating to a healthy child inrelation to financial support provided by parents throughtertiary studies but is of great significance in relation to adisabled child who may be cared for at home by his family forthe lifetime of the child/ parents/siblings.• Often there will be a shortened life expectancy for thedisabled child or the issue of the parents life expectancy andtheir ability to provide care as they get older will come intoquestion.
  21. 21. ©Slater&GordonLimited201221• Should the Defendant be required to pay compensationbeyond the time that the parent‟s legal and moralresponsibility to provide such care ends?• Many parents would see their moral responsibility tocare for a disabled child as a lifetime responsibility• By caring for the child throughout their lifetime orthroughout their child‟s lifetime they are taking a hugeburden off struggling community resources
  22. 22. ©Slater&GordonLimited201222WALLER V JAMES cont:(2)Is the provision of gratuitous care by the familyrecoverable?• The Defendant argued that the care provided to Keeden by hisparents was different to the type of care recognised inGriffiths v Kerkemeyer (1977) 139 CLR 161 and relied on CSR vEddy(2005) 226 CLR 1• CSR v EDDY related to a claim by a Plaintiff withmesothelioma as to damages for his inability to providedomestic services to his wife as a result of his disease.• The High Court found that such damages were not recoverable
  23. 23. ©Slater&GordonLimited201223• Neither case provides much guidance.• G v K refers to care provided to an injured Plaintiff bythe Plaintiff‟s family.• CSR v EDDY refers to the care an injured Plaintiff can nolonger provide to his family• In wrongful birth cases it is not the Plaintiff to whomcare is being provided nor is the Plaintiff unable toprovide care as a result of an injury
  24. 24. ©Slater&GordonLimited201224WALLER V JAMES cont:(3)Is the recovery of the parents limited by theirincome?• The argument advanced by many defendants in suchcases is that a low income family would not be able tospend large sums of money to pay for high level care,physiotherapy, speech therapy and occupationaltherapy and aids to assist in care.• This argument necessarily means that a low incomefamily will receive substantially less compensation thata high income family resulting in a poorer level of carefor the disabled child and a greater burden of carebeing placed on a low income family.
  25. 25. ©Slater&GordonLimited201225WALLER V JAMES cont:(4)Offsets for government assistance• The defendant argued that any government assistanceavailable to the family and child should be offset.• The difficulty here would be trying to predict theavailability of such assistance over the life time of achild such assistance being so highly dependent on thepolitics of the government in power and so frequentlyaltered.
  26. 26. ©Slater&GordonLimited201226WALLER v JAMES cont:(5)What discount rate should be applied?• It was argued by the Defendant that the costs of raisinga child is a pure economic loss claim not a personalinjury claim and therefore the 3% discount rate inTodorovic v Waller(1981)150 CLR 402 should not beapplied .• The correct discount rate would therefore be the 5%rate set under the Civil Liability Act 2002(NSW)
  27. 27. ©Slater&GordonLimited201227HOW ARE DAMAGES ASSESSED FOR A HEALTHY CHILDPREGNANCY COSTS• medical bills, economic loss during pregnancy,GENERAL DAMAGES FOR PAIN AND SUFFERING ASSOCIATED WITH THEPREGNANCY• Will only be awarded subject to the thresholds forclaims for general damages now introduced in a numberof States
  28. 28. ©Slater&GordonLimited201228COSTS OF RAISING A HEALTHY CHILD• Statistical evidence can be produced from variousexperts as to the costs of raising a healthy child or thecosts of raising other children in the family can belooked at.• Were other children in the family educated at a privateschool ?• Were the parents educated at a private school?• What sports did other children play?• Did they play a musical instrument?• Did they have private tutoring at home?• What other social activities were engaged in by thefamily such as attending restaurants etc?•
  29. 29. ©Slater&GordonLimited201229COSTS OF RAISING A HEALTHY CHILD cont:• Did the other children or the parents undertake tertiarycourses or are they likely to undertake tertiary courses?• Were they or will they be fully financially supportedthroughout such courses ?• Did other children obtain part time employmentthroughout secondary or tertiary education ?• The costs of mobile phones, medical and dental care,computers, clothing, food• Alterations or extensions to the home and purchase of alarger car
  30. 30. ©Slater&GordonLimited201230HOW ARE DAMAGES ASSESSED FOR A DISABLED CHILDEXPERT EVIDENCE• Occupational Therapists, Physiotherapists, SpeechTherapists, Neuropsychologists, Psychologists,Paediatric Neurologists, Paediatricians, Prosthetists,Surgeons, Technology Experts, VocationalRehabilitation Experts, Architects• The experts comment on the child‟s future needs, lifeexpectancy, ability to work, medical and allied healthexpenses which will be incurred, what level ofindependence will be achieved in adulthood
  31. 31. ©Slater&GordonLimited201231TYPES OF COSTS INCURRED• wheelchairs, hoists and other necessary equipment forday to day care• modifications to the home• a car that can accommodate a wheelchair and facilitatetransfers• computer equipment that can facilitate communication,aid poor memory, assist at school• medical treatment, regular reviews by specialists,surgical treatment, medication
  32. 32. ©Slater&GordonLimited201232• an integration aid at school, costs of special education,private tutoring• level of supervision required in adulthood, financialsupervision and assistance• prosthetic needs• lifetime costs of ongoing occupational therapy, speechtherapy, physiotherapy
  33. 33. ©Slater&GordonLimited201233ANTENATAL TESTING /WHAT IS REASONABLE ?In Victoria Section 59 of the Wrongs Act stipulates that:• A professional is not negligent in providing a professional service if itis established that the professional acted in a manner that (at thetime the service was provided) was widely accepted in Australia by asignificant number of respected practitioners in the field ( peerprofessional opinion) as competent professional practice in thecircumstances. (SECTION 59(1))• Peer professional opinion cannot be relied upon if the courtdetermines that the opinion is unreasonable ( SECTION 59(2))• The existence of differing peer professional opinions widely acceptedin Australia by a significant number of respected practitioners in thefield does not prevent any one or more (or all) of those opinions beingrelied upon ( SECTION 59(3))
  34. 34. ©Slater&GordonLimited201234• Similar provision applies in NSW, Queensland, South Australiaand Tasmania.• The common law standard applies in the ACT and theNorthern Territory being the standard of the ordinary skilledperson who exercises and professes to have that special skill• ( Rogers v Whittaker)
  35. 35. ©Slater&GordonLimited201235In wrongful birth cases the usual standard of care in question isthat of :• an obstetrician in early management of the pregnancy• a GP providing shared ante natal care, initial advice upondiagnosing the pregnancy or contraception advice and infailure to diagnose early pregnancy• a gynaecologist performing tubal ligation or providingcontraception advice• a genetics expert in relation to failure to diagnose geneticabnormalities• an obstetric ultrasound physician interpreting earlyultrasounds• a public hospital providing ante natal care
  36. 36. ©Slater&GordonLimited201236WHAT TYPE OF ADVICE IS PROVIDED TO PREGNANT WOMEN REANTENATAL TESTINGAn example provided by a recently pregnant colleague:• At the GP attendance to obtain a referral to the obstetricianno advice was given re ante natal testing. At this stage mycollege was 8 weeks pregnant• Upon making an appointment for the first visit to anobstetrician at 13 weeks an information pack was forwardedincluding ante natal screening information.
  37. 37. ©Slater&GordonLimited201237The Information Pack included the followinginformation :Combined Screening Test for DownSyndrome• Blood for maternal screening is collected ideally duringthe tenth week of pregnancy. You will need a referralfrom your GP or your obstetrician for this blood test. Ifyou do not have this blood test before your first 12week ultrasound there will be a delay in getting theresult• If you wish to have the test , ring an ultrasound clinicand ask for a first trimester ultrasound for DownSyndrome. Limited appointment times are available
  38. 38. ©Slater&GordonLimited201238Cystic Fibrosis Screening• A brief description of cystic fibrosis• Cells are collected from the inside of the cheek using a test kitat home. The sample is posted to the laboratory with thedoctor‟s request slip and the results are available in 5 days. Itcosts 4200 which is not refundable via Medicare.• If you want to proceed with testing you need to do so as soonas possible so that any further testing can be carried out inthe first trimester.• Kits can be obtained from ….
  39. 39. ©Slater&GordonLimited201239Questions1. Who takes the blood for screening and how is it organised ?2. As you won‟t see your obstetrician prior to the tenth weekyour GP will need to organise ?3. Why didn‟t my colleague‟s GP sort this out with her when sheattended the appointment to get the referral to theobstetrician at 8 weeks ?4. In the alternative should the first obstetric visit occur at 8weeks ?5. Should an attendance with a midwife be organised at 8 to 10weeks to provide assistance and advice with ante nataltesting?6. Will the majority of women be in a position to efficientlyorganise the testing at the earliest date possible ?7. If not whose fault is it ?
  40. 40. ©Slater&GordonLimited201240• My colleague who is a highly educated, resourceful andorganised person struggled with understanding what she needto do and getting it organised. She had no idea what cysticfibrosis was. She was a person who due to good health hadlittle experience with medical treatment/testing.• If the pregnant woman is from a non English speakingbackground, has limited education, is struggling with socioeconomic issues then what is the likelihood that she will beable to understand the information provided and organise therelevant testing without assistance from a doctor or midwife?
  41. 41. ©Slater&GordonLimited201241THE FUTUREOne new test which will have a significant impact will be the “Safe T21”Down Syndrome test:• has a 99.1% detection rate• can be done at 10 weeks pregnant• falsely detects in 0.2 % of pregnancies• With current testing about one in every 30 women offered follow upinvasive diagnostic procedures such as amniocentesis and chorionicvillus sampling will be found to have a foetus effected by DownSyndrome• With the new screening nearly all women with a normal pregnancy willavoid amniocentesis or CVS which has a 1 in 200 risk of miscarriage• Now available in Hong Kong , China and the US• Some Australian women have requested the testing and forwardedsamples to Hong Kong• Costs about $1000 at the moment• Commercially available in Australia within the next two to three years
  42. 42. ©Slater&GordonLimited201242• A doctor whether a GP or obstetrician not offering such testing whencommercially available in Australia is clearly likely to face anegligence claim.• Taking into account the non invasive nature of the testing and itsaccuracy should it be offered to all women not just those in a high riskgroup?• Even though not commercially available in Australia there is anargument, that taking into account its accuracy which results inavoiding amniocentesis and CVS , that a doctor should be consideringproviding advice as to the tests availability overseas.
  43. 43. For further information visitwww.slatergordon.com.au

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