Published on March 19, 2014
WRONGFUL BIRTH DAMAGES WALLERV JAMES  NSWSC 497 1
BACKGROUND Familiar case name? Waller v James  HCA 16 Factual background: Paternal Anti-thrombin condition IVF required for the pregnancy; provided by Dr James Keeden born August 2000 Cerebral thrombosis (CSVT) on day following discharge 2
THE CLAIM Failure to properly inform the plaintiffs, or cause them to be informed, of the hereditary nature of ATD (Dominant, 50% but variable manifestations) Failure to explain / follow up recommendation for genetic counselling Alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm Note: Proceedings issued before CLA (NSW) 3
DUTY OF CARE The usual Rogers vWhitaker duty: to exercise reasonable care and skill in the provision of professional advice and treatment Note: Ordinary reasonable patient v these two patients “…the question of the potential inheritability of ATD was of significance to the plaintiffs. It was a matter of which the plaintiffs should have been informed…” 4
BREACH OF DUTY “...In my opinion the defendant did not raise with the plaintiffs the potential inheritance of ATD nor did he adequately explain to the plaintiffs the purpose of the referral with the consequence the plaintiffs did not seek to contact Ms Duggan after the failure of the first attempt…” 5
FACTUAL CAUSATION Plaintiffs would have gone to genetic counsellor Whilst most people would have gone ahead with the pregnancy anyway, once counselled, the plaintiffs would not have 6
CAUSATION But, the plaintiffs failed to establish that the CSVT was caused or materially contributed to by the ATD Discussion: Is this relevant as a factual or normative causation finding? 7
WALLACEV KAM 20 Yet another scenario is where the patient, if warned of material risks, would have chosen not to undergo the treatment at the time the treatment in fact took place but may have chosen to undergo the treatment at a later time. Analysis of that further scenario has been more controversial. The better analysis is that it is also a scenario in which a determination of factual causation should be made. Absent the negligent failure to warn, the treatment that in fact occurred would not have occurred when it did and the physical injury in fact sustained when the treatment occurred would not then have been sustained. 8
WALLACEV KAM 2 21 To determine factual causation in a case within the second or third scenarios, however, is to determine only that s 5D(1)(a) is satisfied. Satisfaction of legal causation requires an affirmative answer to the further, normative question posed by s 5D(1)(b): is it appropriate for the scope of the negligent medical practitioner's liability to extend to the physical injury in fact sustained by the patient? 22 In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology…. 9
CONTRIBUTORY NEGLIGENCE No quantified finding “…An appropriate course for the plaintiffs, taking reasonable care in their own interests and before discarding the referral would have been to inquire of the defendant as to the purpose of the referral.This aspect may be relevant to contributory negligence but would not defeat the plaintiff’s primary claim…” 10
DAMAGES ISSUES POST CATTANACH Duration:18+ ? Gratuitous care, is it recoverable and if so on what valuation? Expenses, can the plaintiffs’ only recover what they can afford to pay? Offsets for social security Discount rates for future losses 11
ORDINARY COSTS, ON THESE FACTS Despite Cattanach v Melchior, as these plaintiffs wanted a child, the ordinary costs of raising Keeden were not recoverable Discussion: How does this fit with the termination of pregnancy cases? 12
MAJORITY ISSUE At first instance the claim should be limited to the period up to age18 years Any entitlement beyond the age of legal majority subject to policy considerations, and further development of the law Note: Contrary UK authority and obiter remarks in Cattanach 13
GRATUITOUS CARE Gratuitous care provided by the parents should be compensation by way of award for lost wages This also is subject to policy considerations Note: Section 71 Civil Liability Act 2002 (NSW): “…the court cannot award damages for economic loss for ….any loss of earnings by the claimant while the claimant rears or maintains the child.” 14
FUTURE CARE – PAID BASIS Future paid care may be recoverable, subject to credible evidence substantiating the claim If a “pragmatic approach” is adopted, may not be limited by parental income. 15
OFFSETS Receipts or entitlements will generally be taken into account by way of offset in the assessment of the damages Subject to the application of provisions requiring refund Ensure that the plaintiff does not receive and retain double compensation for the same loss or expense 16
DISCOUNT RATES The economic loss claim in respect of raising and caring for the child is not a standalone claim, but rather is properly categorised as part of the total damages claim for damages for personal injury The 3% discount rate in Todorovic vWaller applies Claims governed by civil liability legislation will presumably have different rates 17
IMPLICATIONS - DAMAGES Duration:18+ ? Gratuitous care, is it recoverable and if so on what valuation? Expenses, can the plaintiffs’ only recover what they can afford to pay? 18
IMPLICATIONS - DUTY Genetics advice IVF Non IVF obstetrics? Non reproductive contexts? 19
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