Khan v MNX: Wrongful birth and the limits of liability

In a significant new decision on clinical negligence liability, although finding a breach of duty, the Court of Appeal held that a mother could not recover the costs associated with her child’s disability, where the advice which she had sought from the doctor related to a different disability.

Facts of the case

The recent decision in Khan v MNX [2018] concerned a mother, M, who consulted her GP with the intention of avoiding having a child with haemophilia. M’s concerns had been prompted by the birth of her nephew who had haemophilia. Blood tests were carried out. However these would only ever be able to ascertain if M had haemophilia, not if she was a carrier of the condition. She was wrongly led to believe that she would not have a child with haemophilia. M subsequently gave birth to a baby who suffered from haemophilia. The child also suffered from autism, unrelated to the haemophilia.

M stated that had she known she was a carrier of haemophilia, she would have had foetal testing when pregnant that would have shown that the foetus was affected, and then would have had a termination. As such, she brought a claim for wrongful birth, claiming the costs attributable both to haemophilia and to autism.

The law in wrongful birth cases is now well established, such that parents cannot claim for the costs of raising a healthy child.[1] However they can claim for the additional costs incurred from raising a disabled child.[2]

The appellant accepted that but for the negligent information he gave M, she would not have had a child and would not have had to bear the costs associated with haemophilia and autism. However, the appellant also argued that the costs of autism specifically were not recoverable, as they were outside the scope of duty of care that he assumed as a GP.

At first instance, it was held that the ‘but for’ test of causation was met in relation to both haemophilia and autism, so M could recover for the costs associated with both of these conditions.

Court of Appeal

The Court of Appeal determined that the main issue was the question of the scope of the duty owed – known as the SAAMCO test – rather than causation under the ‘but for’ test.

It held that the scope of the appellant’s duty was only to advise and investigate in respect of haemophilia. He was not asked to provide advice on any other issues relating to pregnancy generally, or the risk of autism specifically. The autism developed by the child was outside the scope of the appellant’s duty of care, and was deemed by the Court of Appeal to be an inevitable risk of any pregnancy. Therefore, M could not recover for the costs associated with her child’s autism, but only those associated with haemophilia, as they alone constitute loss that falls within the scope of the appellant’s duty of care.

Comment

As with all wrongful birth cases, Khan v MNX raises interesting questions about a court’s ability to assess the quantum of the loss resulting from having a child from a pregnancy that a claimant would have terminated had they been properly treated or advised by their doctor.

It is important that this case is differentiated from others related to wrongful birth though, as the duty of the doctor was not to prevent pregnancy entirely, but to provide accurate advice in relation to a specific condition the mother wanted to avoid passing to her child.

Due to the decision to limit the appellant’s liability to just the costs associated with haemophilia, in contrast to the original trial judge, we may see the Court of Appeal judgment in Khan v MNX go on to have wider implications in medical ‘failure to warn’ cases, if a patient receives negligent advice about risk X, but later suffers from risk Y.

However, it is important to emphasise that the decision in this case turned on the limits of the advice which the claimant had sought. A healthcare professional’s duty to advise will not always be tightly constrained by the specific terms of the enquiry made by their patient.

Footnotes
[1] McFarlane v Tayside Health Board [2000]
[2] Parkinson v St James and Seacroft University Hospital NHS Trust [2002]


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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