Khan v MNX: How can you measure the scope of a doctor’s liability in cases of wrongful birth?
According to Lord Gill in the case of Mcfarlane V Tayside Health Board (1999), “the privilege of being a parent is immeasurable in monetary terms and the benefits of parenthood transcend any patrimonial loss.” Notwithstanding, there have been cases testing the scope of a doctor’s liability in cases of wrongful birth and some of these cases have resulted in parents being awarded monetary compensation. Conceptually speaking the term “wrongful birth” has various definitions. In essence, it refers to a negligence claim where a woman gives birth to a child whom she would have elected not to have if it were not for the medical practitioner’s carelessness. These types of legal cases usually refer to the doctor’s negligent sterilisation of the mother, which results in pregnancy or a doctor’s negligence in the prenatal diagnosis of a condition (usually congenital), which would have lead to a termination in the pregnancy.
The Khan v MNX (2018) litigation, presented the Court of Appeal with a new issue in the law surrounding wrongful birth. This issue referred to the scope of a doctor’s liability in the recovery of additional losses associated with wrongful birth.
Facts of Khan v MNX (2018)
M is now 40-years-old and is the mother of [FGN] who is now 6-years-old. In January 2006, M’s nephew was born and subsequently diagnosed as having haemophilia. M wanted to avoid having a child with haemophilia and so consulted a general practitioner, Dr Athukorala, in August 2006 with a view to establishing whether she was a carrier of the haemophilia gene. Dr Athukorala arranged the blood tests to determine this. However, said tests were only able to establish whether a patient had haemophilia and could not confirm whether or not the claimant was a carrier. In order to establish whether the claimant was a carrier, the claimant would have had to be referred to a haematologist for genetic testing.
On 25th August 2006, M saw the defendant, Khan, another general practitioner at the same practice, to obtain and discuss the results of the blood tests that were previously carried out. M was informed that the results were normal. As a result of the advice she received at that consultation and the previous consultation, she was led to believe that any child she had would not have haemophilia. In 2010, the claimant became pregnant with [FGN] and shortly after his birth he was diagnosed with haemophilia. Subsequently, M was referred for genetic testing, which confirmed that she was a carrier of the haemophilia gene. If M had been referred for genetic testing in 2006, she would have known she was a carrier before she became pregnant. The genetic testing referred to would have revealed that the foetus was affected. In these circumstances, M would have chosen to terminate her pregnancy and [FGN] would not have been born. [FGN]'s haemophilia is severe in that, to date, he has been unresponsive to conventional factor VIII replacement therapy. His joints have been affected by repeated bleeds and he has to endure unpleasant treatment and must be constantly watched, as minor injury will lead to further bleeding.
In December 2015, [FGN] was diagnosed as also suffering from autism. It must be noted that the fact that [FGN] has haemophilia did not cause his autism or make it more likely that he would have autism. However, the management of [FGN]'s haemophilia has been made more complicated by his autism. For example, in comparison to other children of his age with the condition he is unable to report to his parents when he has a bleed due to his autism and it can be said that this gap in understanding is likely to grow as he ages. He is unlikely to be able to learn and retain information, to administer his own medication or to manage his own treatment plan. Furthermore, his autism is likely to prevent him living independently or being in paid employment in the future.
M and her family are now facing significant costs in terms of caring for [FGN] into the future. Who is liable in that patient-doctor context?
Duty of Care, Breach and Causation in English Medical Negligence Cases
In the law of England and Wales, the general duty of care stems from a 1932 ruling of the House of Lords (the then highest court in the land). Lord Atkin established the principle of ‘duty of care’ in Donoghue v Stevenson (1932) in which he argued that a general duty exists to take reasonable care to avoid foreseeable injury to a “neighbour”. In order to bring a claim for negligence the claimant must establish that (a) they are owed a duty of care by the defendant (this could be the doctor treating the patient); (b) the defendant breached the duty by failing to exercise reasonable care and (c) said breach caused the claimant’s injuries, which are not too remote. The relationship between a doctor and patient is a well-established duty situation and the duty refers to the idea that a doctor must exercise reasonable care and skill in diagnosis, advice and treatment.
After a claimant has established that the doctor owes them a duty of care, the next step is to prove that said doctor has breached their duty of care. In order to determine if a doctor has breached their duty of care owed to a patient it is necessary to establish what standard of care could reasonably have been expected. Bolam v Friern Hospital Trust (1957) established that a doctor is required to meet the standard of care that can be expected of a doctor ‘skilled in that particular art’. In Bolitho v City & Hackney Health Authority (1997) the House of Lords adopted a more robust test in which Lord Browne-Wilkinson established that the opinion of other expert witnesses, that is those who are skilled in the particular art, must also be ‘capable of withstanding logical analysis’. In essence, Bolam + Bolitho form the test for the standard of care in medical negligence in English law. This means that the court must establish that the doctor being tried had acted in accordance with responsible medical opinion. If the doctor had not acted thus, then they will be liable. If the doctor did act in accordance with a body of responsible medical opinion, then the doctor may be liable in medical negligence if the claimant can prove that said body of medical opinion is ‘not capable of withstanding logical analysis’.
The next hurdle a claimant would have to prove is causation, for example, that the doctor’s breach of duty caused their injuries. The ‘but for’ test is the standard test for causation with the idea being but for the defendant doctor’s negligence, would the claimant have suffered this injury? Therefore, the claimant has to demonstrate that their injury was caused by the doctor’s negligence, rather than something that would have happened anyway (the presence of a causal link). The ‘but for’ test becomes more difficult when there are a number of causes for the patient’s injuries.
If the claimant can prove, on the balance of probabilities, the existence of this causal link between the doctor’s breach and their injuries the only thing left for the claimant to prove is that the type of damage suffered by said claimant is not too remote (remoteness of damage). The Wagon Mound (1961) is the leading case stipulating the test for remoteness and it establishes that the type of damage must be foreseeable, even if the manner in which the damage occurred is not.
The Court of Appeal’s Decision and the Scope of a doctor’s liability in cases of wrongful birth?
Was the doctor liable for wrongful birth in Khan and, if so, what is the extent of that liability? The primary purpose of M’s consultation was to establish whether she was a carrier of the haemophilia gene. Due to this, the Court of Appeal was correct in highlighting that there was a failure to refer the claimant for appropriate genetic testing and a separate failure to provide her with accurate advice, namely that she was a carrier of the gene for haemophilia, or at least that the test that had been done did not establish that she was not a carrier of the gene. The issue here was whether the defendant doctor was liable for the additional losses associated with FGN’s haemophilia combined with his autism. If the court determined the doctor was liable for the additional losses associated with FGN’s haemophilia and rejected M’s claim that the doctor is also liable for the additional losses associated with FGN’s autism, the amount of damages due to be awarded to M was agreed in the sum of £1,400,000. If the court determined that the doctor was liable for the additional losses associated with FGN’s haemophilia and autism, the amount was agreed in the sum of £9,000,000.
The Court of Appeal decided the former. The doctor was only liable for the additional losses associated with FGN’s haemophilia and not additional losses associated with FGN’s autism. How did the Court of Appeal come to this decision in limiting the scope of a doctor’s liability in cases of wrongful birth? It was argued that the purpose of M’s consultation was to establish whether she was a carrier of the haemophilia gene. The consultation did not extend beyond this purpose. Khan was neither asked nor given relevant information about the claimant’s desire to become pregnant and bear a child in the future. Therefore, according to the Court of Appeal “it was no part of that consultation, still less was any advice sought, that in the event that the respondent did give birth a child of hers could suffer from a condition such as autism.”
To conclude, the Court of Appeal were unable to find a sufficient link between the defendant’s breach and FGN’s diagnosis of autism. The development of autism was a coincidental injury that was not one within the scope of the defendant’s duty. The impact of this decision is significant because of the fact that the Court of Appeal have placed a limit on the extent of a doctor’s liability in wrongful birth cases. Khan is not liable for FGN’s development of autism because “the risk of a child born with autism was not increased by the appellant’s advice, the purpose and scope of her duty was to advise and investigate in relation to haemophilia in order to provide the respondent with an opportunity to avoid the risk of a child being born with haemophilia.” Furthermore, per the judgment the chances of avoiding the development of autism were not lessened by Khan’s failure to properly manage the risk of M having a child with haemophilia. To put it simply the risk of FGN being born with autism was not increased by Khan’s advice.