Making a wrongful birth compensation claim

Can a mother who consults a doctor about avoiding having a child with a particular disability recover damages when that baby is born with another disability?

This is a complex situation in which the claimant, Mrs Meadows, sought damages following the wrongful birth of her son.  She had become pregnant after being reassured by her GP that there was no risk of her having a child with the rare blood disorder, haemophilia, which affects the blood’s ability to clot. This means they may suffer from periods of prolonged bleeding or bleeding that doesn’t stop following an injury.

Her son, who we will call ‘A’, was born with the condition. It then transpired that he is also autistic. There are significant financial implications associated with these diagnoses. The costs of bringing up a child with haemophilia were estimated at £1.4m and the additional costs of dealing with autism amounted to £9m.

The facts

• Mrs Meadows has a nephew who was born with haemophilia. Mindful of the fact that haemophilia is an inherited condition, she consulted her GP to find out if she carried the faulty gene.
• Blood tests were undertaken but they could not confirm whether she was a carrier.  Only genetic testing would have ascertained this properly.
• Her GP advised that her blood tests results were normal and she did not have haemophilia.  She was therefore led to believe that any child she had would not have the disorder. However, the blood tests did not tell her that she was not a carrier.
• She then went ahead and had her son, A, who was diagnosed with haemophilia. Only then was she referred for genetic testing which revealed she was a carrier.
• Had she been referred for genetic testing prior to conceiving, she would have known she carried the gene for haemophilia and ensured her unborn child was tested. Tests during pregnancy such as chorionic villus sampling (CVS) and amniocentesis would have shown that the foetus was affected and she would have terminated the pregnancy.
• A was later diagnosed with severe autism which means he is unlikely to ever live independently or be in paid employment.
• While his haemophilia did not cause his autism or make it any more likely that he would have autism, it has made the management of his haemophilia that much more difficult.

The parties involved agreed that Mrs Meadows was entitled to recover the additional costs arising from A’s haemophilia diagnosis.

However, the matter of whether she could also recover the additional costs associated with A’s autism was an issue for the Court to decide.

Issues before the Court

This was a ‘wrongful birth’ claim – if Mrs Meadows hadn’t been given negligent medical advice, she would have terminated her pregnancy.

In 2002, the Court of Appeal concluded that if negligence has led to the conception or continuation of a pregnancy, the claimant is entitled to damages for any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida or oxygen deprivation during pregnancy or childbirth).

For example, in Groom v Selby [2002] a child contracted salmonella meningitis during delivery. The mother was able to claim damages for the costs of bringing up the brain-damaged child even though the only negligent act was the failed sterilisation leading to the pregnancy.

In Mrs Meadows’ case, there was no argument that A’s autism was anything other than a natural and foreseeable consequence of his birth. There had not been a new intervening act or anything else that interrupted the natural chain of events from conception. Where the parties disagreed was on the question of assumption of responsibility; the scope of the duty of care and the extent to which it would be fair, just and reasonable to hold the defendant liable for the costs related to the autism.

The defendant argued that the loss associated with his autism was not the kind of loss in which the defendant’s duty was owed.  The defendant’s liability should be limited to the haemophilia as that was the particular condition which she was consulted on.

It was agreed in the present case that the risk of autism was a risk that existed with every pregnancy. The risk was not increased or lessened, by the failure to properly manage the risk of Mrs Meadows having a child with haemophilia.

The defendant GP submitted that her duty extended to providing information in respect of just one disability and that it would not be right to say that she had assumed responsibility to protect from all the consequences of the claimant’s decision to proceed with the pregnancy.

Mrs Meadows on the other hand, contended that the ‘kind of loss’ that may be recovered in wrongful birth cases extended to cover disabilities arising from the normal incidents of conception, intra-uterine development and birth. The purpose of the duty was to enable the mother to take steps to terminate an unwanted pregnancy. There was no rational distinction to be drawn between a woman who did not want any pregnancy and one who did not want a particular pregnancy.

The Court’s Decision

The Judge accepted Mrs Meadows’ arguments. In her concluding remarks, she observed that this was a matter of simple ‘but for’ causation.

A would not have been born were it not for the defendant’s negligence. Mrs Meadows therefore would not have had a child with the combined problems of haemophilia and autism. Had she known she was a carrier, she would have undergone foetal testing and would then have terminated this particular pregnancy. The other risks associated with that pregnancy would no longer have existed.

In order to determine the focus of the defendant’s duty, said the Judge, we have to ask what purpose was behind the service sought by Mrs Meadows. In this case, it was to provide her with the necessary information to allow her to terminate any pregnancy affected by haemophilia. The birth of her son resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck, the Judge pointed out, in the same way that the meningitis in Groom v Selby [2002] was bad luck. Nothing to do with the original advice sought, but a natural consequence of pregnancy and birth.

Comment

“This was an interesting case with a sensible and logical decision. Pregnancy is indivisible and neither disability (the haemophilia or the autism) would have occurred if A had never been born. It would therefore be illogical to hold the defendant liable for one condition but not the other.”