IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court

Waller v James  [2013] NSWSC 497 (6 May 2013) – read judgment

So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.

Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust).  Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.

Background facts

Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.

Although there was no genetic test for ATD at the time, the Wallers claimed that their IVF doctor was negligent in not ensuring they knew of the risk of their child inheriting ATD.  They argued that, if they had been warned, they would not have used Mr Waller’s sperm.

Another action – what in this country would be called a “wrongful life” claim – was also taken on behalf of Keeden to recover damages for his disabilities and their consequences failed (Waller v James [2006] HCA 16). The High Court held that Keeden’s life with disabilities was not actionable damage.

The question before the Court was therefore whether a reasonable obstetrician and gynaecologist practising in the area of infertility in 1999, in the position of the defendant, who had been told that Mr Waller suffered from ADT, should have considered the possibility that a child conceived from Mr Waller’s sperm would inherit the mutation and the risk of thrombosis associated with inherited ADT to a neonate or child.

The defendant submitted the relationship between the plaintiffs and the defendant did not give rise to the duty contended for as he was not a geneticist or haematologist. He was a gynaecologist with a sub speciality in infertility and IVF, and, as such, he could not be expected to be aware of the “myriad range” of genetic conditions, or to have detailed information of any given genetic condition or the risks inherent therein. He had been retained to assess a fertility assistance problem. The plaintiffs had not sought advice from him about ATD and did not rely on him for any advice in that regard.

The essence of this wrongful birth claim lay in the question of causation, i.e. whether the plaintiffs, if properly advised, would have gone on to have the child. Judge Hislop concluded on the evidence before it that they would have done:

it is probable that most reasonable people, when faced with the prospect of at least some years delay before appropriate tests may have become available, the understandable desire to father ones own children, the higher risk of hereditary problems associated with donor sperm in 1999, the relatively small risk of any significant symptoms arising from ATD particularly when there is the opportunity for early detection and appropriate management of the condition, would have elected to proceed with the pregnancy as planned.

Furthermore, the expert evidence was that the condition was ‘at most was a minor contributing factor and was possibly irrelevant to the outcome’, and therefore the Court ruled that the Wallers could not prove that Keeden’s ATD had caused the stroke.  Since the harm for which recovery was sought was not reasonably foreseeable, namely the consequences of the stroke, the plaintiffs had failed to establish liability on the part of the defendant. The Court accordingly gave judgment for the defendant.

Comment

Would the outcome of this case have been different, had genetic testing for this disorder been available at the time? A recent wrongful birth claim, also involving an inherited blood disorder, was considered by the Court of Appeal in this country. In Farraj and another v King’s Healthcare Trust and others both parent plaintiffs were carriers of a gene which could cause beta thalassaemia major, a life-threatening blood disease. When the wife was pregnant she was advised to undergo DNA testing to detect whether the child would suffer from the disorder. The test turned out to be negative, but the child was born with BTM. It was alleged that the trust had failed to diagnose the condition during pregnancy, and that the pregnancy would have been terminated had such a diagnosis been given. This case is distinguishable from the Australian one because it did not involve IVF and the hospital was not treating the plaintiff, merely processing the diagnostic test, and the laboratory which had provided the misleading result was found by the Court of Appeal to be 100 per cent liable.   But the interesting question is what the outcome might have been had the chain of causation not been broken by the laboratory’s negligence, and the hospital was responsible for treating the plaintiffs and carrying out the requisite diagnostic tests.

In another wrongful birth case involving a disabled child (Rees v Darlington Memorial Hospital NHS Trust [2004] 1 A.C. 309) there was a suggestion by Lord Scott that a distinction might be drawn between a case where the avoidance of a child with a disability is the very reason why the parents sought treatment and the case where medical treatment (e.g. sterilisation) is sought merely to avoid having to use contraception. His suggestion was that damages should be available only in the former situation. Clearly Farraj falls within this category; as Sedley LJ acknowledged, there might well have been a legitimate complaint by the Farraj parents had they not gone to a private laboratory to have the sample cultured. So an intriguing extension to this line of thought is the hospital’s liability where parents are undergoing IVF.  Not only is there an implied requirement in such circumstances by the parents to avoid the risk of genetic disease, but the opportunity to take steps against hereditary disorders are much greater where there are a number of embryos to choose from. And as the availability and accuracy of genetic tests continue to improve, will it mean that hospitals providing routine antenatal care for mothers will come under a duty of care to provide information and advice that is breached in the case of hereditary disorders breaking through? It may be that the whole contentious landscape of wrongful birth – and even wrongful life – claims may have to be revisited.