Slater & Gordon

© S

late

r &

Gord

on L

imit

ed 2

012

2

CATTANACH V MELCHIOR

• In July 2003 the High Court held by a 4:3 majority in Cattanach v Melchior(2003)215 CLR 1 that the parents of a child, whether disabled or healthy, born as a consequence of medical negligence are entitled to damages for the costs of raising the child.

THE DAMAGES AWARDED AT TRIAL:

• MRS MELCHIOR $103,672

i. Pain and suffering associated with the pregnancy . Unlikely to be awarded today due to the thresholds for establishing permanent impairment unless the mother is injured during childbirth

ii. Loss of earning capacity

iii. Various expenses including, travelling, medical and household care, maternity clothes

© S

late

r &

Gord

on L

imit

ed 2

012

3

• Griffiths v Kerkemeyer claim in relation to care

provided to Mrs M

• MR MELCHIOR $3000 for loss of consortium

• Costs of raising the child $105,249.33

• There was no breakdown in the judgement as to how

these damages were calculated

© S

late

r &

Gord

on L

imit

ed 2

012

4

• An appeal by Dr Cattanach and the State of Queensland to the Court of Appeal was dismissed

• McMurdo J in the Qld Court of Appeal [49]” Whilst recognising that only the crustiest of curmudgeons is not warmed by the miracle of new life, I am far from persuaded that the blessing of parenthood should prohibit or even limit a claim for the modest reasonable costs of rearing to majority the baby conceived as the result of medical negligence following a failed sterilisation performed for socio economic reasons. The free choice of the individual or couple not to be blessed with a child has been taken away from them through negligence and they will consequently suffer economic loss”

• The only award in dispute for which special leave to appeal to the High Court was granted was the costs awarded for raising the child.

• The appellants argued that the arrival of a healthy child should be a benefit to be set off against any damages awarded.

© S

late

r &

Gord

on L

imit

ed 2

012

5

• McHugh and Gummow JJ comment in the case that the expression „wrongful birth‟ is misleading as it is not the birth of the child which is „wrongful‟ but instead the negligent act of the doctor:

• [68]The unplanned child is not the harm for which recompense is sought in this action; it is the burden of the legal and moral responsibilities which arise by reason of the birth of the child that is in contention. The expression “wrongful birth” used in various authorities to which the Court was referred is misleading and directs attention away from the appropriate frame of legal discourse. What was wrongful in this case was not the birth of a third child to Mr and Mrs Melchior but the negligence of Dr Cattanach.”

© S

late

r &

Gord

on L

imit

ed 2

012

6

• The Court found that to suggest that the birth of a child was always a blessing ignored the widespread use of contraceptives in the community and that possible psychological harm to the child in question should not justify the preclusion of recovery of the costs of raising the child.

POST CATTANACH V MELCHIOR

• The acting PM John Anderson denounced the decision as repugnant in that it devalued life and treated children as commodities.

• The Premier of NSW Bob Carr argued that it was unacceptable for the High Court to “dramatically extend the tort of wrongful birth at a time when obstetricians and gynaecologists were struggling with medical indemnity premiums

© S

late

r &

Gord

on L

imit

ed 2

012

7

• Following the decision legislators in NSW, Queensland and South Australia passed laws denying parents the right to pursue damages for the costs of raising a healthy child but preserving their rights to claim such damages for the additional costs associated with the birth of a disabled child.

• (NSW) CIVIL LIABILITY ACT 2002 ss70 and 71

• The NSW Civil Liability Act goes the furthest in providing that a Court cannot award damages for economic loss for the costs associated with rearing or maintaining the child either past of future or any loss of earnings as a result of rearing the child.

• (QLD) CIVIL LIABILITY ACT 2003 ss 49A and 49B

• These provisions are limited in application to failed sterilisation and contraception cases only

• (SA) CIVIL LIABILITY ACT 1936 s67

• There are no equivalent provisions in the ACT, NT, Tasmania, Victoria and WA

© S

late

r &

Gord

on L

imit

ed 2

012

8

THE POSITION OVERSEAS

UNITED KINGDOM

• Macfarlane v Tayside Health Board[1999]4 All ER 961 The case

involved as healthy child and the House of Lords held that the costs of

rearing the child could not be recovered

• Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52

allowed recovery for the extra costs of raising a disabled child

UNITED STATES

• Decisions are numerous and divergent as the birth torts are a state

rather than federal matter. Some states permit full recovery. A

majority disallow recovery for the costs of raising a healthy child but

some allow recovery of the extra costs of raising a disabled child

CANADA

• Costs of raising a healthy child are recoverable if the parents had

decided for financial reasons not to have any more children

• The extra costs of raising a disabled child are recoverable

© S

late

r &

Gord

on L

imit

ed 2

012

9

ELEMENTS OF WRONGFUL BIRTH

The broad classes of negligence involved are:

a) failure to diagnose pregnancy within time to allow a termination

b) failure to conduct a sterilisation with due care causing failure of the

procedure resulting in an unwanted pregnancy

c) failing to take reasonable care in providing advice as to or supplying

contraception

d) failing to diagnose a condition in either the parents or the foetus

which will result in a disability where if such a condition had been

diagnosed the parents would have elected to terminate the pregnancy

e) failure to warn of the risk that a properly performed sterilisation may

reverse or fail so that other forms of contraception are abandoned.

© S

late

r &

Gord

on L

imit

ed 2

012

10

• The Plaintiff must be able to establish that if the negligence had not occurred she would have elected to terminate the pregnancy

EXAMPLES OF SUCH CASES

• failure to undertake testing for Downs Syndrome

• failure to detect spina bifida by way of second trimester maternal screening and/or ultrasound

• Failing to detect other major abnormalites on ultrasound

• failure to advise as to genetic disorders which will be inherited

• misplacement of filshie clips or failure to close filshie clips properly

• failure to conduct a sterilisation procedure during the course of a caesarian as agreed

• failure to insert implanon correctly or to advise as to the proper use of depoprovera

• failure to undertake adequate sperm testing post vasectomy

© S

late

r &

Gord

on L

imit

ed 2

012

11

ASSESSMENT OF DAMAGES IN WRONGFUL BIRTH CASES/ THE

PENDING CASE OF WALLER V JAMES

• Surprisingly there has been minimal case law relating to

the assessment of damages in a wrongful birth case

since 2003.

• Gentile & Anor v Ferri[2004] WADC 144 is a case

involving a failed application of Filshie clips. Damages

were agreed at past and future costs in the sum of

$76,726, special damages $7,686 and $20,000 was

awarded for pain and suffering

© S

late

r &

Gord

on L

imit

ed 2

012

12

G and M v Armellin [2008] ACTSC 68 (24/7/08)

• An IVF case involving a twin pregnancy. The Plaintiff had

advised that she did not want a multiple pregnancy and

consented to a single embryo transfer but this was not

communicated to the embryologist who transferred two

embryos. Healthy twins were born.

• The case was not successful at trial as the Trial Judge found

that it was not Dr Armellin‟s responsibilty to communicate the

Plaintiff‟s wishes to the embryologist. It was the responsibility

of other staff to do so.

• Despite the Judge‟s finding that Dr Armellin was not negligent

she proceeded to assess quantum.

© S

late

r &

Gord

on L

imit

ed 2

012

13

G and M v Armellin [2008] ACTSC 68 (24/7/08) cont:

• Quantum was assessed at :

• General Damages$55,000

• Economic Loss $15,893

• Out of Pocket expenses$1,335

• Costs of raising the child $234,600

• Evidence was given by Professor Paul Henman an expert in the

costs of raising children relied on by the Plaintiff who assessed

the cost of raising the child to age 18 in the sum of $334,000,

discounted by 3% this equated to $276,000. A further discount

of 15% was made for vicissicitudes resulting in the sum of

$234,000

© S

late

r &

Gord

on L

imit

ed 2

012

14

• Dr Henman made allowance for :

• housing

• additional energy costs

• clothing

• household goods and services

• childcare costs to enable employment were significant

• health care costs

• transport

• leisure and personal care

• private school fees

© S

late

r &

Gord

on L

imit

ed 2

012

15

G and M v Armellin [2008] ACTSC 68 (24/7/08) cont• The Trial Judge accepted that for the Plaintiffs private schooling was

a reasonable and necessary expense as was a separate bedroom for each child.

• Dr Henman also allowed $62,000 for financial support through three years of tertiary education. The Trial Judge disallowed this amount on the basis that it was not part of the legal responsibility of a parent to support a child through university

• In Cattanach v Melchior the Court did indicate that in certain cases costs of rearing the child may extend to 21 years of age to allow for financial support during tertiary education.

G and M v Armellin[2009]ACTCA6(1 May 2009)

• The decision as to negligence was reversed on appeal and the Plaintiffs were successful

© S

late

r &

Gord

on L

imit

ed 2

012

16

WALLER V JAMES

• Waller v James was heard in the Supreme Court of NSW before

Justice Hislop in February 2012 and a decision is pending

• The case was issued prior to the Civil Liability Act 2002 and is

therefore a common law claim. However it was argued by the

Defendant that the costs associated with raising Keeden which

did not relate to his disability could not be recovered as, but

for, the negligent act the Wallers would have had a healthy

child and the associated child rearing expenses.

© S

late

r &

Gord

on L

imit

ed 2

012

17

WALLER V JAMES cont:

WRONGFUL LIFE

• The litigation has a long history having come before the High Court

previously in 2006(Waller v James (2006) CLR 136 with Harriton v

Stephen (2006)226 CLR 52.) At that stage the case was argued as a

wrongful life claim.

• The High Court held (with Justice Kirby dissenting) that a child‟s life

with disabilities did not qualify as damage and there was therefore no

legal duty to prevent such a life.

• Such claims have been allowed in four US states and in Israel, France

and Holland but are not available in Australia, UK , Canada

© S

late

r &

Gord

on L

imit

ed 2

012

18

WALLER V JAMES cont:

• Keeden Waller was born on 10/8/00 with the assistance of IVF

treatment provided by Dr James.

• Shortly after his birth he suffered a stroke resulting in severe

brain damage and multiple disabilities.

• It is alleged that the thrombotic stroke had been caused by

anti thrombin deficiency which Keeden had inherited from his

father. The condition causes a propensity for the blood to clot

abnormally.

© S

late

r &

Gord

on L

imit

ed 2

012

19

WALLER V JAMES cont:

• It was alleged by the Wallers that they told Dr James about Mr

Waller‟s anti thrombin deficiency and that Dr James had handed them

a “post it” note with the phone number of a genetics counsellor which

was in fact a hospital switchboard number.

• An unsuccessful attempt was made by the Wallers to contact the

counsellor but was not pursued. Dr James argued that Keeden‟s stroke

was not caused by the anti thrombin deficiency and that the referral

to the genetics counsellor made by Dr James was adequate.

• Breach of duty, causation and damages were all disputed and argued

before the Court.

© S

late

r &

Gord

on L

imit

ed 2

012

20

WALLER V JAMES cont:

In the case the major issues relating to the assessment of damages were :

1. Does the claim extend beyond the legal majority of the child?

• This is relevant in a case relating to a healthy child in relation to financial support provided by parents through tertiary studies but is of great significance in relation to a disabled child who may be cared for at home by his family for the lifetime of the child/ parents/siblings.

• Often there will be a shortened life expectancy for the disabled child or the issue of the parents life expectancy and their ability to provide care as they get older will come into question.

© S

late

r &

Gord

on L

imit

ed 2

012

21

• Should the Defendant be required to pay compensation

beyond the time that the parent‟s legal and moral

responsibility to provide such care ends?

• Many parents would see their moral responsibility to

care for a disabled child as a lifetime responsibility

• By caring for the child throughout their lifetime or

throughout their child‟s lifetime they are taking a huge

burden off struggling community resources

© S

late

r &

Gord

on L

imit

ed 2

012

22

WALLER V JAMES cont:

(2)Is the provision of gratuitous care by the family

recoverable?

• The Defendant argued that the care provided to Keeden by his

parents was different to the type of care recognised in

Griffiths v Kerkemeyer (1977) 139 CLR 161 and relied on CSR v

Eddy(2005) 226 CLR 1

• CSR v EDDY related to a claim by a Plaintiff with

mesothelioma as to damages for his inability to provide

domestic services to his wife as a result of his disease.

• The High Court found that such damages were not recoverable

© S

late

r &

Gord

on L

imit

ed 2

012

23

• Neither case provides much guidance.

• G v K refers to care provided to an injured Plaintiff by

the Plaintiff‟s family.

• CSR v EDDY refers to the care an injured Plaintiff can no

longer provide to his family

• In wrongful birth cases it is not the Plaintiff to whom

care is being provided nor is the Plaintiff unable to

provide care as a result of an injury

© S

late

r &

Gord

on L

imit

ed 2

012

24

WALLER V JAMES cont:

(3)Is the recovery of the parents limited by their income?

• The argument advanced by many defendants in such cases is that a low income family would not be able to spend large sums of money to pay for high level care, physiotherapy, speech therapy and occupational therapy and aids to assist in care.

• This argument necessarily means that a low income family will receive substantially less compensation that a high income family resulting in a poorer level of care for the disabled child and a greater burden of care being placed on a low income family.

© S

late

r &

Gord

on L

imit

ed 2

012

25

WALLER V JAMES cont:

(4)Offsets for government assistance

• The defendant argued that any government assistance

available to the family and child should be offset.

• The difficulty here would be trying to predict the

availability of such assistance over the life time of a

child such assistance being so highly dependent on the

politics of the government in power and so frequently

altered.

© S

late

r &

Gord

on L

imit

ed 2

012

26

WALLER v JAMES cont:

(5)What discount rate should be applied?

• It was argued by the Defendant that the costs of raising

a child is a pure economic loss claim not a personal

injury claim and therefore the 3% discount rate in

Todorovic v Waller(1981)150 CLR 402 should not be

applied .

• The correct discount rate would therefore be the 5%

rate set under the Civil Liability Act 2002(NSW)

© S

late

r &

Gord

on L

imit

ed 2

012

27

HOW ARE DAMAGES ASSESSED FOR A HEALTHY CHILD

PREGNANCY COSTS

• medical bills, economic loss during pregnancy,

GENERAL DAMAGES FOR PAIN AND SUFFERING ASSOCIATED WITH THE

PREGNANCY

• Will only be awarded subject to the thresholds for

claims for general damages now introduced in a number

of States

© S

late

r &

Gord

on L

imit

ed 2

012

28

COSTS OF RAISING A HEALTHY CHILD • Statistical evidence can be produced from various

experts as to the costs of raising a healthy child or the costs of raising other children in the family can be looked at.

• Were other children in the family educated at a private school ?

• Were the parents educated at a private school?

• What sports did other children play?

• Did they play a musical instrument?

• Did they have private tutoring at home?

• What other social activities were engaged in by the family such as attending restaurants etc?

•

© S

late

r &

Gord

on L

imit

ed 2

012

29

COSTS OF RAISING A HEALTHY CHILD cont:

• Did the other children or the parents undertake tertiary

courses or are they likely to undertake tertiary courses?

• Were they or will they be fully financially supported

throughout such courses ?

• Did other children obtain part time employment

throughout secondary or tertiary education ?

• The costs of mobile phones, medical and dental care,

computers, clothing, food

• Alterations or extensions to the home and purchase of a

larger car

© S

late

r &

Gord

on L

imit

ed 2

012

30

HOW ARE DAMAGES ASSESSED FOR A DISABLED CHILD

EXPERT EVIDENCE

• Occupational Therapists, Physiotherapists, Speech

Therapists, Neuropsychologists, Psychologists,

Paediatric Neurologists, Paediatricians, Prosthetists,

Surgeons, Technology Experts, Vocational

Rehabilitation Experts, Architects

• The experts comment on the child‟s future needs, life

expectancy, ability to work, medical and allied health

expenses which will be incurred, what level of

independence will be achieved in adulthood

© S

late

r &

Gord

on L

imit

ed 2

012

31

TYPES OF COSTS INCURRED

• wheelchairs, hoists and other necessary equipment for

day to day care

• modifications to the home

• a car that can accommodate a wheelchair and facilitate

transfers

• computer equipment that can facilitate communication,

aid poor memory, assist at school

• medical treatment, regular reviews by specialists,

surgical treatment, medication

© S

late

r &

Gord

on L

imit

ed 2

012

32

• an integration aid at school, costs of special education,

private tutoring

• level of supervision required in adulthood, financial

supervision and assistance

• prosthetic needs

• lifetime costs of ongoing occupational therapy, speech

therapy, physiotherapy

© S

late

r &

Gord

on L

imit

ed 2

012

33

ANTENATAL TESTING /WHAT IS REASONABLE ?

In Victoria Section 59 of the Wrongs Act stipulates that:

• A professional is not negligent in providing a professional service if it

is established that the professional acted in a manner that (at the

time the service was provided) was widely accepted in Australia by a

significant number of respected practitioners in the field ( peer

professional opinion) as competent professional practice in the

circumstances. (SECTION 59(1))

• Peer professional opinion cannot be relied upon if the court

determines that the opinion is unreasonable ( SECTION 59(2))

• The existence of differing peer professional opinions widely accepted

in Australia by a significant number of respected practitioners in the

field does not prevent any one or more (or all) of those opinions being

relied upon ( SECTION 59(3))

© S

late

r &

Gord

on L

imit

ed 2

012

34

• Similar provision applies in NSW, Queensland, South Australia

and Tasmania.

• The common law standard applies in the ACT and the

Northern Territory being the standard of the ordinary skilled

person who exercises and professes to have that special skill

• ( Rogers v Whittaker)

© S

late

r &

Gord

on L

imit

ed 2

012

35

In wrongful birth cases the usual standard of care in question is

that of :

• an obstetrician in early management of the pregnancy

• a GP providing shared ante natal care, initial advice upon

diagnosing the pregnancy or contraception advice and in

failure to diagnose early pregnancy

• a gynaecologist performing tubal ligation or providing

contraception advice

• a genetics expert in relation to failure to diagnose genetic

abnormalities

• an obstetric ultrasound physician interpreting early

ultrasounds

• a public hospital providing ante natal care

© S

late

r &

Gord

on L

imit

ed 2

012

36

WHAT TYPE OF ADVICE IS PROVIDED TO PREGNANT WOMEN RE

ANTENATAL TESTING

An example provided by a recently pregnant colleague:

• At the GP attendance to obtain a referral to the obstetrician

no advice was given re ante natal testing. At this stage my

college was 8 weeks pregnant

• Upon making an appointment for the first visit to an

obstetrician at 13 weeks an information pack was forwarded

including ante natal screening information.

© S

late

r &

Gord

on L

imit

ed 2

012

37

The Information Pack included the following information :

Combined Screening Test for Down Syndrome

• Blood for maternal screening is collected ideally during the tenth week of pregnancy. You will need a referral from your GP or your obstetrician for this blood test. If you do not have this blood test before your first 12 week ultrasound there will be a delay in getting the result

• If you wish to have the test , ring an ultrasound clinic and ask for a first trimester ultrasound for Down Syndrome. Limited appointment times are available

© S

late

r &

Gord

on L

imit

ed 2

012

38

Cystic Fibrosis Screening• A brief description of cystic fibrosis

• Cells are collected from the inside of the cheek using a test kit

at home. The sample is posted to the laboratory with the

doctor‟s request slip and the results are available in 5 days. It

costs 4200 which is not refundable via Medicare.

• If you want to proceed with testing you need to do so as soon

as possible so that any further testing can be carried out in

the first trimester.

• Kits can be obtained from ….

© S

late

r &

Gord

on L

imit

ed 2

012

39

Questions1. Who takes the blood for screening and how is it organised ?

2. As you won‟t see your obstetrician prior to the tenth week your GP will need to organise ?

3. Why didn‟t my colleague‟s GP sort this out with her when she attended the appointment to get the referral to the obstetrician at 8 weeks ?

4. In the alternative should the first obstetric visit occur at 8 weeks ?

5. Should an attendance with a midwife be organised at 8 to 10 weeks to provide assistance and advice with ante natal testing?

6. Will the majority of women be in a position to efficiently organise the testing at the earliest date possible ?

7. If not whose fault is it ?

© S

late

r &

Gord

on L

imit

ed 2

012

40

• My colleague who is a highly educated, resourceful and

organised person struggled with understanding what she need

to do and getting it organised. She had no idea what cystic

fibrosis was. She was a person who due to good health had

little experience with medical treatment/testing.

• If the pregnant woman is from a non English speaking

background, has limited education, is struggling with socio

economic issues then what is the likelihood that she will be

able to understand the information provided and organise the

relevant testing without assistance from a doctor or midwife?

© S

late

r &

Gord

on L

imit

ed 2

012

41

THE FUTURE

One new test which will have a significant impact will be the “Safe T21” Down Syndrome test:

• has a 99.1% detection rate

• can be done at 10 weeks pregnant

• falsely detects in 0.2 % of pregnancies

• With current testing about one in every 30 women offered follow up invasive diagnostic procedures such as amniocentesis and chorionic villus sampling will be found to have a foetus effected by Down Syndrome

• With the new screening nearly all women with a normal pregnancy will avoid amniocentesis or CVS which has a 1 in 200 risk of miscarriage

• Now available in Hong Kong , China and the US

• Some Australian women have requested the testing and forwarded samples to Hong Kong

• Costs about $1000 at the moment

• Commercially available in Australia within the next two to three years

© S

late

r &

Gord

on L

imit

ed 2

012

42

• A doctor whether a GP or obstetrician not offering such testing when

commercially available in Australia is clearly likely to face a

negligence claim.

• Taking into account the non invasive nature of the testing and its

accuracy should it be offered to all women not just those in a high risk

group?

• Even though not commercially available in Australia there is an

argument, that taking into account its accuracy which results in

avoiding amniocentesis and CVS , that a doctor should be considering

providing advice as to the tests availability overseas.

For further information visit

www.slatergordon.com.au