Meadows v. Khan

[2017] EWHC 2990 (QB)
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 2017
Court: High Court of Justice Queen’s Bench Division
Tags: Disabilities, Health information, Medical malpractice, Right of Access to Information, Sexual and reproductive health

The claimant, Omodele Meadows, brought this case before the High Court of Justice to recover additional costs for raising her son, Adejuwon, who suffered from Hemophilia and autism. Prior to her pregnancy, the claimant, after seeing her nephew diagnosed with hemophilia, had taken blood tests to determine whether she was a carrier and was informed by the general practitioner that she was not a carrier of the gene. In 2010, the Claimant became pregnant with Adejuwon and gave birth to him the following year. After Adejuwon was born, he was diagnosed with hemophilia and the later genetic tests confirmed that she was a carrier of the gene. Later in 2015, Adejuwon was also diagnosed with autism.
The claimant sought for compensation for the wrongful birth of her son as she claimed that she would have undergone termination had she been diagnosed correctly. She stated that the management of hemophilia has been made more complicated by his autism and the combination of the two rendered him incapable of living independently or getting employed. She relied upon the cases of Parkinson and Groom in which the court held that the claimants were entitled to recover for any disability arising from genetic causes or foreseeable events during pregnancy although there was no direct link between the negligence and the disability. Based on these, she argued that the defendant was liable for all the consequences of the pregnancy in cases where “but for the defendant’s negligence” the pregnancy would have been terminated. In response to the claimant’s arguments, the defendant stated that the costs incurred were outside the scope of her liability as the service rendered was only to diagnose hemophilia and the unrelated risk of autism cannot be transferred to the doctor. She relied upon the SAAMCO principle to delimit the scope of her duty as the case held that the damages can be calculated only after deciding the kind of loss that the plaintiff is entitled to compensation. Based on this, she contended that her duty did not extend to providing information on all the foreseeable risks of pregnancy but only in relation to a specific disability for which her service was sought for.
In the light to these facts, the legal issue before the Court was: Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to
avoid the birth of any child) recover damages for the additional costs associated with
an unrelated disability?

All other issues were resolved by the parties through agreement and the Court had to only take legal submissions against an agreed factual background. The Court held that all consequences stemming from Adejuwon’s wrongful birth, including his autism, fell within the scope of the Defendant’s duty to care. In furtherance of this, the court referred to the case of Chester v. Afshar in which it was held that “where a surgeon failed to warn of the very risk that materialized the patient should have a remedy in damages”, even though the risk associated with it was inevitable. Based on this the court pointed out that although the risk of autism existed with every pregnancy, it arose out of the continuation of the pregnancy which would otherwise have been terminated. The court rejected the defendant’s arguments of divisibility of duty in case of autism and stated that the pregnancy was indivisible. The court held the autism in this instance still rested on the “but for” causation of the Defendant’s negligence, rendering her liable for costs associated with it. The pregnancy as a whole owed to the Defendant’s negligence and so was indistinguishable from the cases Parkinson and Groom(explained above)and held the doctor liable for negligence.
Further, the Court held that it was also not fair, just or reasonable to create a legal distinction between a woman who wished to avoid any pregnancy and one who wished to avoid a particular kind of pregnancy (such as Claimant here) that to draw a distinction based on the underlying reason of why a mother would have wanted pregnancy was ‘unattractive, arbitrary and unfair.’ Claimant’s willingness to accept the risks that accompanied any pregnancy, such as those of autism, did not bar her from the recovery of costs related to the manifestation of those risks in pregnancy which would not have otherwise been realized. Therefore, the court awarded 9,000,000 pounds as damages to the claimant.

“It is inapt to ask […] what losses would have occurred if the information [from Khan] had been correct. The pregnancy is indivisible. It cannot be said that, if the advice had been accurate, the claimant would have had a child with autism but not with hemophilia […] Adujowon was the product of a particular pregnancy which only continued to exist as a result of the negligent advice.” Paragraph 56
“As I have already said, the focus of the defendant’s duty and the very purpose of the service the claimant sought was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by hemophilia […] The scope of the duty in this case extended to preventing the birth of Adejuwon and all the consequences that brought.” Paragraph 62
“It is true that the defendant did not assume any particular responsibility in relation to autism but […] doctor did assume a responsibility which, if properly fulfilled, would have avoided the birth of the child in question.” Paragraph 63
“Issues of causation in tort cases frequently raise difficult issues and inconsistencies do exist within the law. I am firm of the view that this case should be decided by applying the relevant principles consistent with the way in which the Court of Appeal has applied them in other wrongful birth cases. I consider it unattractive to introduce further inconsistency by distinguishing different types of wrongful birth cases and applying different principles to the recovery of damages for the upbringing of a disabled child.” Paragraph 70

Groom v Selby [2002] PIQR P18, Hale LJ said: “The principles applicable in wrongful birth cases cannot sensibly be distinguished from the principles applicable in wrongful conception cases. In Parkinson, Hale LJ concluded [92] that the mother was entitled to recover for: “any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not Novus actus interventions.” South Australia Asset Management Corporation v York Montague [1997] AC 191, a decision of the House of Lords concerning negligent valuation of property before the property crash of the early 1990’s “Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation.” In Chester v Afshar [2005] 1 AC 309, the House of Lords considered the application of the SAAMCO principle in a different context in a clinical negligence claim Lord Hope of Craighead said this [81]: “It was already there, as an inevitable risk of the operative procedure itself however skilfully and carefully it was carried out. The risk was not increased, nor were the chances of avoiding it lessened, by what Mr Afshar failed to say about it.”
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