Co-authored by Lyndsey Combe
A doctor fails to warn a patient of a risk. If warned, the patient would have accepted the risk. The risk materialises and the patient suffers harm. Should they be able to recover damages?
In Meadows v Khan [2017] EWHC 2900 (QB) the court allowed recovery for the additional costs of raising a child with haemophilia and autism. Causation was particularly difficult to establish because the mother would have accepted the risk of autism had she been warned about it.
Facts of the case
In 2006, Mrs Meadows sought advice from her GP, Dr Khan, as to whether she was a carrier of the haemophilia gene. Tests indicated that she did not suffer from haemophilia but only genetic testing could determine if she was a carrier. Dr Khan advised her that the tests were normal. Based on this, Mrs Meadows believed that any child she had would not have haemophilia. In 2011 she gave birth to her son, Adejuwon. He had haemophilia and was later diagnosed with autism.
Mrs Meadows contended that had she been properly advised, she would have undergone foetal testing and terminated her pregnancy. It was accepted that having haemophilia did not result in an increase in the risk of developing autism. Autism was described as a natural and foreseeable consequence of birth.
Dr Khan admitted that she had breached her duty of care in delivering the test results and that Mrs Meadows was entitled to recover the additional costs of raising a child with haemophilia. However she had assumed no responsibility in relation to autism. Had Mrs Meadows been warned of that risk, she would have accepted it. The question for the court was whether the claimant could also recover the additional costs associated with Adejuwon's autism.
Decision in Meadows
The judge accepted that Dr Khan had not assumed any responsibility in relation to autism. But had she fulfilled her duty on genetic testing for haemophilia, the child would not have been born. Mrs Meadows should not be placed in a worse position simply because she would have been happy to have another pregnancy and run the risk of the baby being born with autism.
Informed consent cases
The notion of compensating a claimant for an unacceptable level of risk is also seen in consent to treatment cases. In Wallace v Kam [2013] CLR 375, a decision of the Australian Supreme Court, Mr Wallace's doctor should have warned him of the risk of neuraplaxia and paralysis before he could consent to spinal surgery. Following surgery, he developed neuraplaxia.
The court held that Mr Wallace would have proceeded with the surgery even if he had been warned of the risk of neuraplaxia. However, had he been warned about the risk of paralysis he would not. The underlying policy was to protect the patient from risks which were unacceptable. Mr Wallace should not be compensated for a risk which he would have been prepared to accept. The legal cause of the neuraplaxia could not be the failure to warn of the risk of paralysis. Whilst this is an Australian decision, it is likely to be persuasive in the UK.
The crucial difference between these cases is that in Wallace, the injury which he ought to have been warned about did not materialise. In contrast, the risk which Mrs Meadows ought to have been warned about, the risk of having a child with haemophilia, did materialise. Once that had been established, Dr Khan was legally responsible for all foreseeable loss flowing from the birth of the child, including the additional costs of raising a child with autism.
It may seem like an arbitrary distinction given that, had Mr Wallace been properly advised, he would not have consented to the surgery. The courts are however keen to use legal causation as a mechanism to limit the circumstances under which damages will be recoverable. It is clear that compensation will not be payable every time a patient ought to have been warned of a risk – a stronger causal connection between the risk and the harm which eventuated will be required.
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