Introduction

If a child would not have been born but for the doctor’s negligence in failing to advise the risk of their born with a hereditary disability, and having been born not only with the hereditary disability but also another congenital disability, can the mother of the child claim for the costs associated with all of her child’s disabilities, or only for the costs associated with the hereditary disability which the doctor was consulted on? This was the question that the Supreme Court of the United Kingdom addressed with answers in Khan (Respondent) v Meadows (Appellant) [2021] UKSC 21. 

Factual background

The appellant, Ms Meadows, is the mother of a child with haemophilia and autism. Before her pregnancy, Ms Meadows consulted the respondent, Dr Khan to establish whether she carried the haemophilia gene so that it would pass on to her child since she wished to avoid having child born with haemophilia. After various blood tests, Ms Meadows was told that she was not a carrier of the haemophilia gene so that she would not have child with haemophilia. However, her child was unfortunately born with haemophilia and autism.

Ms Meadows sought damages from Dr Khan based on wrongful birth. She argued that Dr Khan was liable for all the consequences of the pregnancy. Had she been correctly advised she would have undergone foetal testing for haemophilia during her pregnancy and would have terminated the pregnancy on discovering the child had haemophilia. Dr Khan admitted liability for the consequences of the child's haemophilia, but denied liability in relation to the autism.

High Court decision

The Court of First Instance (“CFI”) found in favour of Ms Meadows and held that Dr Khan was liable for both the costs associated with the child’s haemophilia and autism relying on the ‘but for’ causation test, namely Ms Meadows would not have had the child but for Dr Khan’s negligence. Upon Dr Khan’s appeal, the Court of Appeal (“CA”) reversed the CFI’s judgment and held that only the losses in relation to the child’s haemophilia were recoverable. The CA decided the “scope of the duty” test as set out in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 (“SAAMCO”) should be determinative in the current clinical negligence case even though it originally concerns commercial cases. The SAAMCO principle determines that the claimant must prove the losses suffered fell within the scope of the defendant's duty of care, and that, had the defendant not breached that duty of care, the loss would not have been suffered (even if the information provided was correct). The CA concluded that the child’s autism was not within the scope of Dr Khan’s duty of care and therefore Dr Khan was liable for the costs associated with the child’s haemophilia only. Ms Meadows then appealed to the Supreme Court.

Supreme Court decision

The Supreme Court upheld the decision of the Court of Appeal, in that Dr Khan was liable only for losses falling within the scope of her duty of care.  The scope of her duty of care included to advise Ms Meadows on whether or not she was a carrier of the haemophilia gene only. 

In analysing the place of the scope of duty principle in the tort of negligence, the Supreme Court applied a model which consists of six questions:

1.         Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question);

2.         What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question);

3.         Did the defendant breach his or her duty by his or her act or omission? (the breach question);

4.         Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question);

5.         Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question); and

6.         Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).

The Supreme Court applied the model and found that:

1.         The economic costs of caring for a disabled child are of a nature that is clearly actionable.

2.         The scope of duty question is answered by addressing the purpose for which Ms Meadows obtained the service of the general medical practitioners. In this regards, Ms Meadows approached the general practice surgery for a specific purpose and wished to know if she was a carrier of the haemophilia gene. The purpose of the consultation was to put her in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. Dr Khan therefore owed her a duty to take reasonable care to give accurate information or advice when advising her on the specific risk of giving birth to a child with haemophilia.

3.         Dr Khan was in breach of her duty of reasonable care, as she readily admitted.

4.         As a matter of factual causation, Ms Meadows lost the opportunity to terminate the pregnancy in which the child had both haemophilia and autism. There was thus a causal link between Dr Khan’s mistake and the birth of the child.

5.         The law did not impose on Dr Khan any duty in relation to unrelated risks which might arise in any pregnancy. As such, Dr Khan was liable only for the costs associated with the care of the child insofar as they are caused by his haemophilia. One could also apply the SAAMCO counterfactual as an analytical tool by asking what the outcome would have been if Dr Khan’s advice had been correct and Ms Meadows had not been a carrier of the haemophilia gene. The answer clearly was that the child would have been born with autism.

6.         Bearing in mind the purpose for which the service was undertaken by Dr Khan, the law imposes upon her responsibility for the foreseeable consequences of the birth of a boy with haemophilia, and thus the increased cost of caring for a child with haemophilia.

Conclusion

The case set out the necessary ingredients for the imposition of liability on medical practitioners, and that satisfying the “but-for” test in proving causation would not suffice. The claimant shall establish a sufficient nexus between a particular element of the harm for which he seeks damages and the subject matter of the defendant’s duty of care. It would be pertinent to analyse the purpose of the alleged negligent service in order to ascertain the scope of duty of care, and thus the likely damages.