This recent judgment from the UK Supreme Court considered the difficult question of duty of care and what compensation is appropriate when another issue, unconnected to any negligent advice, arises. In this case, the Court had to decide whether the Appellant (Plaintiff) should receive compensation based only on the fact that her child had been born with haemophilia (when she had been provided with incorrect medical advice as to the risk of that prior to the birth) or for the fact that her child had both haemophilia and autism. The doctor accepted liability for the failure related to the haemophilia testing and advice (and by virtue, the compensation associated with that element of the claim) but denied that there was any liability arising relating to the fact that the child had autism (and the associated costs of care relevant to that condition).
Crucial to the case was the fact the Appellant contended that she would have terminated the pregnancy had she known about the haemophilia diagnosis (and therefore, no costs of care whatsoever would have arisen to be borne by the Appellant). The Supreme Court held that the doctor was liable only for losses within the scope of her duty of care to advise the Appellant about being a carrier of the haemophilia gene. There was no liability for costs associated with the diagnosis of autism.
Whilst not a binding decision in the Irish Courts, the judgment provides food for thought to medical practitioners and healthcare lawyers in this jurisdiction, as in the event that a case with similar facts arose here, the decision of the UK Supreme Court would be considered as persuasive case law.
Factual Background to the Duty of Care case
In the case before the UK Supreme Court, the Appellant gave birth in 2011 to a child with haemophilia. The child was subsequently diagnosed with autism in 2015. The Appellant was aware that there was a possibility that she may carry the haemophilia causing gene in 2006, when her nephew was born. Even before her own pregnancy, the Appellant requested that her GP check whether she carried the gene. The Appellant underwent some testing, which confirmed that she was not a carrier. However, her doctor failed to inform her that she would need to undergo further testing when she was pregnant, and accepted liability for the child’s haemophilia as a result.
Importantly, the Plaintiff contended that if she has been aware of the fact that her child had haemophilia, she would have opted to terminate the pregnancy, and therefore there was a “wrongful birth” element to the case. Due to the nature of the autism diagnosis, there was a likelihood that it would prevent the child from living independently or sustaining paid employment in his adult years, and the costs associated with autism were six times that of costs associated solely with haemophilia. The difference between the award of damages in either scenario was therefore significant, running to several million pounds.
Case at first instance (English High Court)
The High Court held that the doctor was liable for costs associated with both the haemophilia and autism. The Appellant relied on two Court of Appeal wrongful birth cases, in which compensation was awarded relevant to unconnected medical conditions. The High Court applied the standard “but for” test in medical negligence litigation, and consequently held that if the Appellant had not been given advice which fell below the acceptable standard of care, the child would not have been born. Damages of £9 million were awarded (in connection with both the haemophilia and autism diagnoses).
English Court of Appeal
In contrast, the Court of Appeal allowed the doctor’s appeal, finding her liable for costs associated with the haemophilia only. In doing so, the Court of Appeal considered the “scope of duty principle” as illustrated in South Australia Asset Management Corp v York Montague Ltd (1997) and known as the “SAAMCO approach”. This was not a medical negligence case, but the Court of Appeal considered a similar assessment of the scope of the duty of care applied. The test considers whether, if the negligent information provided had in fact been correct, the same loss would have occurred. As part of that reasoning, the Court considered that a person should be held responsible for any direct consequences of their negligent advice, but not for all the consequences. The Court therefore held that costs associated with the autism diagnosis fell outside the scope of the duty of care, as the doctor was not asked to provide advice on any other medical issues, such as the risk of autism.
UK Supreme Court judgment
The Supreme Court unanimously dismissed the appeal. The Appellant submitted that the SAAMCO approach was not appropriate in a medical negligence case, as there was an imbalance of power between doctor and patient, and the entire alleged loss stemmed from the negligence on the part of the doctor. The Supreme Court rejected the Appellant’s argument that the scope of duty principle does not apply to claims arising out of clinical negligence and held that there is no sound basis for excluding clinical negligence from the application of the principle, nor for confining the principle to cases involving pure economic loss arising in commercial transactions.
The scope of the consultation by the doctor was only to provide the Appellant with information as to the possibility of her child having haemophilia and allowing her to make an informed decision about her pregnancy. A professional who is tasked with providing information will only be liable for all the foreseeable consequences of their actions. There was a lack of foreseeability as to the diagnosis of autism.
The Supreme Court considered as part of the judgment that a helpful model to analyse the place of the scope of duty principle within the question of whether negligence arises in a case is to answer a set of 6 questions in sequence. Importantly, in answer to 2 of these questions, the Court held that the law did not impose any duty on the doctor in relation to unrelated risks (such as autism) which might arise in any pregnancy, and that there was insufficient connection between the doctor’s duty and the autism for there to be any justification for making the doctor liable for it.
“…the Court must separate out from the [total] loss, which the claimant has suffered …, the element of that loss which is attributable to the defendant’s negligent performance of the service which he or she undertook”
The following quotation sums up the basis for the judgment well: “… the Court must separate out from the [total] loss, which the claimant has suffered …, the element of that loss which is attributable to the defendant’s negligent performance of the service which he or she undertook…” The Supreme Court therefore held that the doctor was liable only for losses falling within the scope of her duty of care to advise the Appellant on whether or not she was a carrier of the haemophilia gene, and she was not liable for costs associated with the child’s autism.
What implications does the judgment have for Duty of Care and Irish practitioners?
The application of the SAAMCO approach in a clinical negligence case is an interesting development. The pragmatic approach taken by the Supreme Court in acknowledging that not all possible risks can be advised to patients, and the distinction made between foreseeable and unforeseeable consequences is a logical one. Whilst not a binding decision in the Irish Courts, the judgment provides food for thought to medical practitioners and healthcare lawyers in this jurisdiction, as in the event that a case with similar facts arose here, the decision of the UK Supreme Court would be considered as persuasive case law.
