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Supreme Court rules on doctor’s liability for consequences of wrong advice

Suzanne Farg
16/08/2021
When a patient develops a serious medical condition because their doctor negligently gave them incorrect advice, they can usually bring a clinical negligence claim for compensation.

Similarly, where a doctor gives incorrect advice about the risk of fetal abnormality and the correct advice would have led to a pregnancy being terminated, parents can sometimes claim for the costs associated with their child’s disability.

This type of case usually occurs in circumstances where a mother is not advised to have a test during pregnancy (such as an additional ultrasound or genetic test), which would have shown a high risk of fetal abnormality.

The Supreme Court’s recent decision in June 2021 in the case of Khan v Meadows [2021] UKSC 21, highlights that not all consequences of a doctor’s negligent advice can be included in a claim.

In this case, prior to becoming pregnant, the mother was aware of a family history of haemophilia, the hereditary blood disorder. She sought advice from her GPs about the possibility of passing on that condition to her children. She was tested and told that she did not have haemophilia, but her GP failed to tell her that she needed a further genetic test to discover whether she was a carrier of the disorder.

The mother went on to become pregnant and give birth to a son who was subsequently diagnosed with both haemophilia and autism. Had the mother known that she was a genetic carrier for haemophilia, she would have had fetal testing and, following a positive test, would have terminated the pregnancy.

She therefore brought a medical negligence claim against the GP in respect of the costs of meeting her son's needs caused by his haemophilia and his autism.

The Court accepted that the mother should be compensated for the costs associated with her son's haemophilia (£1.4m). However, a question arose about whether the compensation should also include the much higher costs of meeting his autism related needs (£7.6m).

It was understood that the autism was a coincidental condition and was not related in any way to the haemophilia. It was also accepted that the risk of autism in the population is low and, therefore, if the mother had terminated the pregnancy and become pregnant again, the chances were that the resulting child would not have had autism.

On this basis, the Court agreed that, if the GP had not been negligent, the mother would probably not have had a child with either haemophilia or autism.

However, the Supreme Court ultimately decided that the mother was not entitled to compensation for the autism related needs. This was because the GP's duty of care did not extend to protecting against the risk of having a child with autism. The GP had been consulted regarding the risk of passing on haemophilia, meaning the compensation should be limited to meeting needs due to the haemophilia only.

Clinical negligence cases are decided on individual facts. There are other circumstances in which a doctor or hospital might be liable for failing to investigate the possibility of fetal abnormality, even if the risk of the resulting disability is not specifically discussed. Specialist medical negligence solicitors can help to navigate this complicated area.

Read more about our wrongful birth claims.

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