Wrongful birth – claiming for a disabled child

By Legal Eagle

In The Age today there’s an article about a couple with a severely disabled child suing an IVF practitioner in negligence:

Debbie and Lawrence Waller love their 11-year-old son, Keeden, but they believe he should never have been born.

Just days after Mrs Waller gave birth in August 2000 following IVF treatment, Keeden suffered a massive stroke that caused severe brain damage and meant he was never able to walk, talk or go to the toilet.

The stroke was the result of a rare blood clotting condition known as antithrombin deficiency which Keeden inherited from his father.

Tragically, the Wallers did not know there was a 50 per cent chance that Keeden would have the defective gene.

They are now suing the IVF specialist who oversaw Keeden’s conception – Christopher James – in the NSW Supreme Court for what is known as ”wrongful birth” and seeking compensation in the order of $10 million for the lifelong care of their handicapped son.

”We love Keeden now that he’s here, but if we had the right information and the right options we wouldn’t have gone ahead with the birth, not in the way we did,” Mrs Waller said from her home in Kangaroo Valley yesterday.

”Had things been done right, Keeden would never have been here. He would never have to go through the suffering he goes through – the seizures and all.”

The case raises a number of legal questions and could set a precedent for other parents whose children have disabilities.

The Wallers told Dr James about Lawrence’s blood clotting condition, and they claim he breached his duty of care to them by failing to take proper steps to find out whether it could be passed on by just one parent.

In the first day of the hearing yesterday, Justice John Hislop heard that Dr James did not seek to find out the answer himself, but handed the couple the name and phone number of a genetic counsellor at Wollongong Hospital on a post-it note. It is alleged the note was given to the Wallers in the context of a discussion about fertility not genetics, and that the phone number was the main switchboard for the hospital rather than the counsellor’s direct line.

When the phone went unanswered the Wallers did not call back, and it is alleged that Dr James did not mention the genetic counsellor again, and began the IVF process.

”There was a duty of care on the part of Dr James to ensure that both he and the Wallers understood that this problem could be passed on and for there to be proper counselling and discussion about the other options they had, including the option of an anonymous sperm donor,” counsel for the Wallers, David Higgs, SC, said.

It is not the first time the Wallers have been to court in relation to their son. In 2006, they launched an unsuccessful ”wrongful life” case in the High Court on Keeden’s behalf, in which he sought compensation for future loss of earnings and opportunity.

I have commented on the earlier High Court decision involving the Wallers here. A majority of the court found that the doctors did not owe a duty of care to the plaintiffs. It was found that Dr James did not in fact cause the disabilities from which Keeden suffered. The Court was somewhat troubled by the fact that there was an inference in Waller and Harriton (the appeal heard at the same time) that it would be preferable if the plaintiffs had not been born. Furthermore, the only persons who could lawfully ask for the pregnancies to be terminated were the mothers of the plaintiffs. If a duty was recognised, this might raise an uncomfortable situation where a mother of a disabled child was encouraged to abort their child by a doctor (even if the mother’s wishes were otherwise).

At the time, I noted that Kirby J dissented. His judgment displayed an intense sympathy for the plaintiffs and a corresponding desire for the plaintiffs to be compensated by the doctors’ insurers. Kirby J’s judgment was consistent with the case of Cattanach v Melchior (2003) 215 CLR 1, which awarded damages for “wrongful birth”.

In Cattanach v Melchior [2003] HCA 38, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only ligated her left fallopian tube. In fact, the information that the right fallopian tube was removed was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.

The English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in Macfarlane & Anor v Tayside Health Board (Scotland) [1999] UKHL 50. Lord Millett in that case said:

In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.

Clearly the present case is different to either Cattanach or Macfarlane. Poor Keeden is not a normal, healthy baby. The costs of looking after him must be immense, and I am sure that his parents worry about what will happen to him if something should happen to them. It must be one of the hardest things to face about having a severely disabled child.

Despite my intense sympathy for the Wallers, this case bothers me. What if Keeden hadn’t been conceived by IVF? Who would the Wallers have sued then? How far must a doctor go in ensuring that a patient undertakes genetic counselling?  As I have said previously, I really wonder if the law of negligence is a suitable vehicle for getting proper support for disabled children. Whether one gets support via negligence depends on whether one can find someone to wear the blame. And sometimes, there simply isn’t anyone to blame. [As an aside, I was born extremely prematurely and have had some physical problems as a result of that, but it wasn’t anyone’s “fault” (if anything, it was probably my own, as I understand babies release the hormone which triggers labour).]

As I have noted previously, cases such as this highlight the need to provide better care for disabled people in our society. (I know from DEM’s posts that the present trend is for governments to try and renege from this responsibility, and I must say that I find that repugnant.) It is unavoidable that some people will be severely disabled because of disease or the circumstances of their birth, and sometimes, it is not anyone’s “fault”, but as a humane society, we should do all that we can to assist, regardless of the fault or lack thereof. This is a burden which, as a moral society, we must all shoulder, and that this is precisely the kind of thing which the welfare state should help with. The state should assist with the provision of facilities for the proper care of disabled people, whether that be residential facilities, respite care or community activities.

In any case, it will be interesting to see what happens with this case. Having lost on the “wrongful life” claim, will the Wallers now succeed on a “wrongful birth” claim? Or will this lead to a reconsideration of Cattanach?

13 Comments

  1. Dan
    Posted February 1, 2012 at 1:24 pm | Permalink

    This case would have to be one of the best arguments in favour of a national disability insurance scheme (similar to the way that the TAC operates).

    I am very concerned about the potential for wrongful birth litigation – it was all very well for Kirby J to want to have the doctor’s insurance meet some of the expenses but this in turn creates the situation where obstetric health care providers are put under immense pressure from insurers fearful of more such claims.

    There is also a certain peversity of a tortious claim against an IVF doctor for succeeding in doing the very thing that he was engaged to do (that is provide a course of treatment which would hopefully result in a pregnancy).

    As it happens, I suspect that the causation issues have a few too many hurdles to jump here. First, they would need to get over the fact that the doctor provided them with a referral to a genetic counsellor which they didn’t fully pursue. Second, from my understanding, most of the significant negative health issues resulted not from the genetic condition itself but from a stroke suffered because of the genetic condition – it seems that the husband suffering from the same condition has a much better quality of life. than the son. That is, it was not automatic that if the boy were to inherit the same genetic condition that he would go on to suffer from the extreme health issues that he has undergone.

  2. Under_Exposed
    Posted February 1, 2012 at 1:37 pm | Permalink

    Even if they were to succeed against Dr James, change the facts a little. Had he not been infertile, and the Wallers had conceived naturally, the same thing could have occurred with the same result. Except, there would be no-one to sue. An even better reason for a no fault compensation scheme

  3. hommyl
    Posted February 1, 2012 at 2:50 pm | Permalink

    poor parents:(

  4. Debbie Waller
    Posted February 1, 2012 at 2:55 pm | Permalink

    Let it be known that we were not given a referral, that is an a4 piece of paper with our names, our history, what proposed treatement was happening, what Dr James wanted to find out from the supposed Genetic Counsellor. This is what one would give some importance to and follow up as a matter of course. No, instead we were given a post it note with a name and a switchboard number for Wollongong Hospital on it with no explanation as to what it was for other than “ring that lady about that”. Hardly a referral, had it have been what everyone considered to be a referral there would be no legal case as there would be no Keeden. If my child had been conceived naturally if the same result occurred there would be no one to take action against. This was not the case so it is a moot point. We consulted a specialist whom we alledge did not do his job properly. The events would be very different if he had of. It is also not a fact that if I had been able to conceive naturally that any child that I had at any time, that is any egg and sperm creating a baby, would have the same disasterous outcome as my son. A different time, a different baby, a different outcome.

  5. Posted February 1, 2012 at 4:06 pm | Permalink

    If ever there were a line of cases that exemplified the dictum ‘hard cases make bad law’, the various wrongful birth, wrongful life and wrongful pregnancy cases are it.

    I will just point out that Scots law permits recovery where the child is born disabled, but since Tayside have deducted the costs of raising a normal child, only awarding ‘top up’ damages to cover for the extra costs of disability. Another point: the Court of Session decision in Tayside was actually overruled in the Lords; the Scots courts were happy to award full damages.

    The relative ease with which it has been possible to obtain damages for disabled children in Scotland as a consequence of medical negligence has Roman law origins: viz, the jurists’ maxim that ‘it is better to be dead than disabled’. That is shocking to modern ears, schooled as we are to value life over health. If, however, we as a society are unwilling or unable to manage and bear the costs of disability, then the Roman valuing of healthy life over life per se may well win the day. It is a perfectly reasonable position to take, but very, very confronting.

  6. Posted February 1, 2012 at 4:12 pm | Permalink

    I should also add that the mother in Tayside did receive solatium for the pregnancy and childbirth, but not, as you say, for maintenance until majority.

  7. Mel
    Posted February 1, 2012 at 4:47 pm | Permalink

    I would’ve thought some sort of screening for genetic diseases would be standard procedure prior to IVF. The fact that the doctor didn’t do it sounds like a fairly clear breach of a duty of care to me. “No-fault compensation” sounds OK provided moral hazard is somehow dealt with. For instance in the above case, provided the facts are as explained, the doctor needs to be punished in some way.

    I would personally also support giving parents the option to euthanize malformed babies in, let’s say, the first month of its life.

  8. hommyl
    Posted February 1, 2012 at 4:52 pm | Permalink

    and Debbie; the guy could’ve told you your son might be born like that and that way you would’nt have had him but having him naturally, you wouldn’t have known he might have been born like that and so it is ccompletely different. My heart bleeds for you and your family:(

  9. Posted February 1, 2012 at 8:15 pm | Permalink

    Interesting – statutory enactment of bits of the Bolam test. They still use it in England. The Scots case on point is Hunter v Hanley, which provides a bit more wiggle room, mainly by pointing out that it has to involve an actual medical procedure, not something covered by the general law of Delict.

  10. Posted February 2, 2012 at 4:58 pm | Permalink

    In related news, Pfizer has possibly caused wrongful births in a higher quantity..

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