Dr Khan v MNX – Court of Appeal

5 MARCH 2019

A study on the scope of the doctor’s duty of care and losses flowing from a breach of that duty.

An unusual case. FGN, the son of MNX, and aged 6 years by the time this matter was heard by the Court of Appeal towards the end of 2018, was born with haemophilia and autism. The claim arose on the back of MNX asserting that properly advised that she was carrying a child that would be born with haemophilia, she would have aborted the pregnancy and avoided the costs of caring for a child suffering both haemophilia and autism.

Damages were assessed by the court of first instance in the sum of £9 million. Dr Khan appealed, seeking a ruling that whilst the claimant was entitled to be compensated for the costs associated with the birth of child with haemophilia, she was not entitled, as a matter of law, to the additional costs associated with caring for a child with autism. The agreed difference in the value of the claims was the £9 million awarded, and lower sum of £1.4 million which was the sum agreed between the parties as attributable to losses if Dr Khan was only liable for the costs associated with haemophilia.

The court studied the available case law in depth, and for those interested in more detail the judgement bears reading in full.

The purpose of the consultation between MNX and Dr Khan was to establish whether MNX was a carrier of the haemophilia gene. There was a failure to refer MNX for appropriate genetic testing, and a separate failure to provide her with accurate advice, namely that she was a carrier of that gene. The focus of the consultation, advice and appropriate testing was directed at the haemophilia issue and not the wider issue of whether, generally, the respondent should become pregnant and the coincidental risks of pregnancy.

Analogies

Analogies

This case was different to Parkinson v St James and Seacroft Hospital NHS Trust and Groom v Selby.

In Parkinson the claimant had undergone a negligent sterilisation procedure and became pregnant. Although warned the child might be born disabled, she refused a termination. The child was born with severe congenital abnormalities.

In Groom the claimant had undergone a sterilisation test at a time when, unknown to anyone, she was about 6 days pregnant. Several weeks later she saw the defendant having missed her period and with symptoms including abdominal pain. The defendant negligently failed to carry out or arrange a pregnancy test and failed to examine her to see if she was pregnant. The claimant discovered she was pregnant a few weeks later. Had she known about the pregnancy sooner she would have terminated it. Although apparently born healthy, the child was found to have salmonella meningitis from exposures to bacteria during the delivery.

In Parkinson the court held that although parents were not entitled to recover the costs of bringing up and caring for a normal healthy child, they might be entitled to an award for the extra expenses of caring for a child with significant disabilities that were foreseeable consequence of the surgeon’s negligence. In Groom, applying Parkinson it was held the claimant was not entitled to the ordinary economic costs of bringing up a healthy child but could recover the additional costs of bringing up a disabled child.

In Parkinson the doctor’s duty was to prevent conception - thus he assumed responsibility for all the problems of pregnancy. In Groom the doctor knew that the claimant had been sterilised and did not want any more children. His advice was given with that knowledge and in that factual context.
Context

Context

On the facts of this case Dr Khan had no such information. Her advice was sought on one issue only, whether MNX carried the haemophilia gene. Critically it was no part of that consultation, still less was any advice sought, that in the event that MNX did give birth, the child could suffer from autism.

The scope of Dr Khan’s duty was not to protect MNX from all the risks associated with becoming pregnant and continuing with her pregnancy. Dr Khan had no duty to prevent the birth of FGN. The risk of a child born with autism was not increased by Dr Khan’s advice.

In concluding that Dr Khan should be liable for a type of loss which did not fall within the scope of Dr Khan’s duty to protect MNX against, the judge at first instance failed to apply the correct test (that identified by Lord Hoffman in South Australian Asset Management Corporation v York Mantague Ltd (“SAAMCO”) and reverted to the “but for” causation test. The correct SAAMCO test requires there to be an adequate link between the breach of duty and the particular type of loss claimed. It is insufficient for the court to find that there is a link between the breach and the stage in the chain of causation (in this case the pregnancy itself) and thereafter to conclude that Dr Khan was liable for all the reasonably foreseeable consequences of that pregnancy.

In finding that MNX was deprived of the opportunity to terminate the pregnancy what the judge at first instance was in fact referring to was one of the links in the chain of causation, whereas in SAAMCO the link must be between the scope of the duty and the damage sustained.

The judge erred in suggesting that the circumstances of this case were closer to Chester v Afshar than SAAMCO.

In Chester the defendant, a neurosurgeon, advised the claimant to undergo a surgical procedure on the spine, which even if conducted without negligence, carried a small risk that the claimant would develop cauda equine syndrome, which is in fact what happened. Although the judge at first instance found that the surgeon was negligent in the advice he gave, the judge did not find that properly advised, the claimant would not have had the surgery. On appeal the Court of Appeal found that as the risk was liable to occur irrespective of the skill and care of the surgeon, the failure to warn neither affected the risk, nor was an effective cause of the claimant’s injury. Thus on a conventional test the claimant could not establish causation. However the court went on to find that the risk was within the scope of the duty the surgeon had to warn the claimant about. As he had not so warned her the injury was to be regarded as having been caused by the defendant’s breach of duty.

Central to the reasoning in Chester v Afshar was the fact that the very misfortune that befell the claimant was the very misfortune that the defendant had a duty to warn against. In this case the development of autism was a coincidental injury and not one within the scope of the duty that Dr Khan had.

Conclusion

This case is a good illustration of arguments being made which amount to what might be described as coincidental causation. “If you had properly advised me about this, then that would not have happened”. Malpractice claims are often made on the back of the “but for” causation test. Assuming that is all there is to establishing causation is wrong, as this case makes clear.

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Dr Khan v MNX – Court of Appeal

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