30 November 2018
Doctors’ scope of duty for wrongful birth: an analysis of Dr Hafshah Khan v MNX [ 2018 ] EWCA Civ 2069
THE FACTS The Respondent’s nephew had been born in January, 2006 and was subsequently diagnosed with haemophilia. The Respondent wished to avoid having a child with that condition and so consulted her GP in August, 2006 to ascertain whether she carried the haemophilia gene. Blood tests were arranged. The tests were to confirm whether the Respondent had the condition and not if she was a carrier of the gene. In order to determine her position , the Respondent would have had to be referred to an haematologist for genetic testing. On 25th August, 2006, the Respondent saw the Appellant to discuss blood tests and was told that the results were normal. As a result she was left to believe that any child she had would not have had haemophilia. The Respondent became pregnant with FGN in 2010 and shortly after birth he was diagnosed with haemophilia. The Respondent was referred for genetic testing which confirmed she was a carrier of the haemophilia gene. Had the Respondent been referred for genetic testing in 2006 she would have known she was a carrier of the gene before she became pregnant and she would have undergone foetal testing for haemophilia which would have revealed that the foetus was affected. In these circumstances, the Respondent would have terminated the pregnancy and FGN would not have been born. In December, 2015 FGN was diagnosed with autism. The fact that FGN had haemophilia did not cause his autism or make it more likely that he would have autism. The Appellant admitted that but for her negligence FGN would not have been born as his mother would have properly discovered during her pregnancy that he was afflicted by haemophilia and she would have undergone a termination of the pregnancy. The issue at trial before Mrs Justice Yip was whether, as a matter of law, the Appellant’s liability was limited to the additional losses associated with FGN’s haemophilia or whether she was liable for the additional losses associated with both his haemophilia and autism By an order dated 8th February, 2017 the Appellant consented to judgment being entered on the basis of the allegations of breach of duty and causation as set out in the Particulars of Claim. Prior to trial the parties reached agreement in relation to quantum on the basis that :
- If the court determined that the Appellant was liable for the additional losses associated with FGN’s haemophilia and rejected the Respondent’s claim that the Appellant was also liable to the additional losses associated with FGN’s autism , quantum was agreed in the sum of £1,400,000. These losses would have applied for wrongful birth due to disability having regard to Parkinson v St James’ & Seacroft University Hospital NHS Trust [ 2002 ] QB 266 and Groom v Selby [ 2002 ] PIQR P18.
- If the court determined that Appellant was liable for the additional losses associated with FGN’s haemophilia and autism, quantum was agreed in the sum of £9,000,000.
- The purpose of the procedure and/or information that was alleged to have been negligent ;
- The appropriate apportionment of risk taking into account the nature of the advice, procedure and information ; and
- The losses which would in any event have occurred had the correct information been given or the procedure performed ?
- In the Respondent’s case the purpose behind the consultation was to allow her to make an i. informed decision in respect of any child that she may subsequently conceive and who was carrying the haemophilia gene. The specific enquiry was related to whether any future child would carry the haemophilia gene, therefore it would be inappropriate and unnecessary for any doctor to volunteer any other additional information about the risks of pregnancy, including that of autism.
- In terms of the apportionment of risk that would be split as between the risks of the Respondent giving birth to a child with haemophilia due to no foetal testing and thereby no termination of pregnancy, as against the risks to her of all other potential difficulties of the pregnancy and birth both as to herself and the child
- . The loss that would have been sustained had the correct information and testing been given and performed is that FGN would have been born with autism.
22 November 2023