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In June the Supreme Court of England and Wales handed down a long awaited decision in respect of the Clinical Negligence case of Khan v Meadows. The case is important for ‘Wrongful Birth’ claims going forward but it is also going to have a wider impact on decisions we make in all clinical negligence. This is because the Supreme Court have now added the test of ‘scope of duty’ to the things we need to consider in deciding the prospects of success of our cases.

The claim related to a failure of the Claimant’s GP to arrange investigations to determine whether the Claimant carried a haemophilia gene. The Claimant wanted to know whether she carried the gene before having a baby. Her GP checked only whether she had haemophilia and not whether she carried the gene. In 2010 the Claimant went on to have a baby and shortly after birth her baby was diagnosed with haemophilia. It then transpired that the Claimant did carry the gene. The baby’s condition was complicated because he also suffered with autism. This made his haemophilia harder to treat.

It was the Claimant’s case that if she had known she had the haemophilia gene she would have had testing in her pregnancy; the testing would have determined that her baby had haemophilia and she would have terminated her pregnancy. On this basis she claimed compensation for the costs of bringing up her child with haemophilia and autism.

In clinical negligence claims we consider the following when deciding whether a case is likely to succeed:

  1. Does the healthcare professional owe the Claimant a duty of care (duty)?
  2. Was the treatment provided by that health professional below the standard of a reasonably competent practitioner (breach of duty)?
  3. As a direct consequence of the substandard treatment provided did the Claimant suffer injury (causation)?

The High Court Judge applied the usual principles in a clinical negligence claim and found that if the Defendant had not been negligent the Claimant’s baby wouldn’t have been born. The Claimant won.

The Defendant wasn’t happy with the decision and appealed. The Defendant’s case was that the GP was only asked to investigate whether the Claimant had a haemophilia gene. The Defendant was responsible for the baby being born with haemophilia but they should not be responsible for the costs of bringing up a child with autism because that wasn’t what the Claimant was trying to guard against when she sought the advice of her GP. Autism was not within the Defendant’s “Scope of Duty”. The Court of Appeal agreed with the Defendant.

This time the Claimant wasn’t happy with the decision and the Supreme Court were asked to make a decision about whether the Defendant should be responsible for all of the extra costs of bringing up the Claimant’s child or whether it was only responsible for the extra costs associated with the child having haemophilia. The Supreme Court found in favour of the Defendant.

The decision is important for Wrongful Birth claims because there is now a distinction between when the Claimant would want to terminate her pregnancy due to a specific condition or she would want to terminate any pregnancy.

The decision is also important for clinical negligence claims as a whole because we will now need to consider the ‘Scope of Duty’. The court has given us 6 tests that we will need to apply in each case but put simply we will need to consider exactly what the Claimant was seeking when they went to the health professional and the connection between that and the injury suffered. How the decision will affect clinical negligence claims in practice remains to be seen but we expect it to be most important in cases where a Claimant goes to a doctor for 1 problem and another problem could and should have been identified but was missed (for example an X-ray was looked at for a fractured rib but showed a lesion in the lung that turned out to be cancer. Is the doctor responsible for the failure to diagnose cancer because that wasn’t what they were asked to look at?). As always with big decisions in the courts time will tell!

 

If you are concerned about a failure of your health provider that has resulted in injury please get in touch and one of highly experienced clinical negligence team would be happy to discuss your concerns with you.