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Plaintiffs can’t neglect causation

The burden of proof extends well beyond demonstrating a breach of duty by the defendant.

In any negligence case, it is for the plaintiff to prove its case on the balance of probabilities. One of the elements of doing this is proving causation. It is simply not enough to show a breach of duty by the defendant; to prove negligence, the plaintiff must also prove the breach caused the injury or loss. A recent medical negligence case demonstrates this important point.

K was conceived by IVF. Within one week of birth, K suffered a stroke and became permanently and profoundly disabled. K was born with anti-thrombin deficiency (ATD), which he inherited from his father. Prior to the birth, K’s parents consulted Dr J, a general gynecologist with an IVF subspecialty. They requested fertility assistance from Dr J. K’s father mistakenly thought inheritance of ATD required both parents to have the condition. K’s father disclosed his ATD status to Dr J but there was no discussion about inheritability. Dr J referred the parents for genetic counselling – which they did not attend – and then to an IVF clinic for fertility testing. The testing was not concerned with the father’s ATD. Subsequently, Dr J recommended IVF.

The parents brought proceedings alleging that the doctor was in breach of contract and breached his duty of care to them by having failed to inform them of the hereditary aspects of ATD. They argued that had they been informed, they would have deferred undergoing the IVF treatment until they could do so without risk of having a child with ATD, and that as a result they would not have had a child who suffered a stroke. In other words, the parents alleged that ‘but for’ these breaches, K would not have been conceived and inherited ATD, and so would not have suffered a stroke. Dr J argued that he did not breach his duty of care but even if he did, K’s stroke was not caused by ATD and so no damages should be awarded.

The trial judge found that there was no duty on Dr J to advise the parents of the inheritability of ATD. However, there was a duty on Dr J to ascertain the parents’ awareness of the potential inheritability of ATD and to ‘appropriately’ refer them to a genetic counsellor. The trial found that Dr J was in breach of his duty on these two grounds. Next, the judge had to consider whether the breach caused the stroke. The judge found that Dr J’s breaches led to a missed opportunity to correct the parents’ misunderstanding about the inheritability of ATD. He also held that with this knowledge, the parents would not have had K, by IVF or otherwise. Irrespective of this, the judge found, on current scientific knowledge, ATD did not cause the stroke. Finally, the judge found that the scope of Dr J’s duty should not extend to the damages from such a stroke, and that the losses were too remote. The parents had failed to establish negligence on the part of Dr J and appealed. Recently the appeal judgement was handed down.

On appeal, the parents alleged that as a result of Dr J’s negligence they were deprived of their right to plan their family, namely to not have a child born with ATD. Dr J challenged the trial judge’s factual findings in relation to whether the parents would have sought genetic counselling if appropriately advised, and also whether they would have proceeded to have their child if such counselling was obtained.

In a unanimous decision, the Court of Appeal concluded that the trial judge made no errors in the factual findings challenged by Dr J and that an infringement of the right to plan a family could give rise to a claim for economic loss. Dr J’s duty of care extended to providing information to the parents about the importance of seeking genetic counselling, as well as following up whether they had sought such advice. There was a failure on the part of Dr J to adequately explain the reasons for the referral for genetic counselling. However, it was found that the stroke was not causally related to Dr J’s breach and was coincidental to the inheritance of ATD. Finally, the court concluded that the risk of the parents’ child suffering a stroke was encompassed within the normal risks of pregnancy, which the parents were willing to accept. Accordingly, the harm K suffered was not within the scope of the risk the doctor’s negligence created and therefore was too remote. Accordingly, the appeal was dismissed.

The judgement demonstrates that not every breach of duty results in a finding of negligence. It also shows that when referrals are made that is not end of the matter. There exists a duty to follow up and ensure that the referral was kept and that the patient understands the basis of the referral. This is not applicable just to nurses who may work in IVF clinics; it arguably applies more generally.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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