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Wrongful Birth

Such cases are different to wrongful conception cases as here the Claimant did not seek to avoid conception itself but instead the negligence has caused them to lose the opportunity to terminate a pregnancy ( for example through negligent pre-natal screening).

The case of Meadows v Khan (2017) means that damages can be claimed for wrongful birth where a child is disabled.  In this case the Claimant brought a wrongful birth claim in connection with the birth of her son.  She had become pregnant after being reassured by her GP that she did not carry the genes for haemophilia.  She relied upon the assurance made to her and became pregnant.  The child was born with haemophilia and autism.

This case went as far as to say that the Claimant could recover damages for haemophilia which was not detected and autism, which was not caused by the haemophilia.

The damages that the Claimant claimed for haemophilia were £1,400,000.00.  The cost associated with caring for a child with autism were £9,000,000.00.

• The Claimant consulted with her GP to determine whether she did carry the faulty gene.
• Blood tests were undertaken but could not establish whether she was a carrier.  Only genetic testing would have been able to determine this.
• The GP advised the Claimant that the blood tests were normal and that she did not have the haemophilia. The Claimant therefore believed that any child she would subsequently have would not have it.  The testing established that she was not a carrier.

The Claimant became pregnant several years later and her child was born with haemophilia. Testing after the event established that she was a carrier.

Had she been referred for testing prior to conception she would have known that she carried the gene and would have terminated the pregnancy.

In addition to haemophilia the child was born with severe autism, to the extent that he would not be able to live independently or obtain paid employment.

The autism made the haemophilia more difficult to cope with.

It is an established law that a Claimant cannot get damages for a healthy child (McFarlane v Tayside Health Authority (2000).  This could be distinguished from cases involving the cost of raising a disabled child.  Rees v Darlington Memorial Hospital NHS Trust (2003) made it clear that the cost of raising a disabled child could be recovered.

In the case of Meadows the doctor argued that his duty ought to be limited to the loss in respect of haemophilia.

It was decided that the infant would not have been born, but for, the Defendant's negligence. She would not have had a child with either haemophilia or autism. Had she known that she had the mutant gene she would have terminated the pregnancy.

Damages were awarded for both elements of the claim, both the haemophilia and autism.

This is a case that demonstrates the importance of considering what was recorded in the discussions that led to the Claimant drawing the conclusion that she did not have haemophilia therefore neither would her child.

For further information please contact solicitor Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

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