The claimant, a mother of a child with haemophilia and autism, had, prior to her pregnancy, consulted with her GP to determine whether she carried the gene for haemophilia. The doctor negligently led her to believe that she did not carry this gene, and as a result, she was led to believe that she could not pass it on to her children.
The claimant gave birth to a child with haemophilia. Had she not been negligently led to believe that she did not carry the gene, the claimant would have undergone foetal testing and terminated the pregnancy. The doctor admitted liability for the costs resulting from the haemophilia.
The claimant’s child was later also diagnosed with autism, rendering him unable to find paid work, and unlikely to be able to manage his haemophilia unassisted. The court had to determine whether the doctor was liable for the costs related only to the costs associated with his haemophilia, or also for those related to his autism.
The UK Supreme Court held that it was not sufficient to find a link between leading the claimant to believe that she did not carry the gene and the pregnancy, and then to conclude that the doctor should be liable for all losses that resulted from that advice. Instead, the link should be between the doctor’s duty of care and the loss the claimant sustained.
The Supreme Court held that the losses relating to the child’s autism were outside of the doctor’s duty of care.
Like the UK, South Africa recognises wrongful birth claims. Our courts have however yet to determine whether a doctor who negligently gives incorrect advice would be liable for all losses that result, or just those related to the specific risk that they were consulted on.
The case is Khan (Respondent) v Meadows (Appellant) (supremecourt.uk)
