Damages for the additional cost of bringing up autistic child recoverable against doctor who failed to warn mother of haemophilia risk

A negligent doctor is liable for the foreseeable consequences of the breach of duty which would not have occurred ‘but for’ the negligence.  In Meadows v Khan [2017] EWHC 2990 a mother sought to establish whether she carried the haemophilia gene prior to becoming pregnant.  Her doctor arranged a test and based on the results she was given reassurance.  In fact the test only confirmed she did not have haemophilia, not that she wasn’t a carrier.  She was a carrier and when she subsequently became pregnant and gave birth, her child had haemophilia.  Had she not been negligently advised, and had she therefore known that she was a carrier, the judge accepted that she would have undergone foetal testing and had a termination.  She was therefore entitled to the additional costs of bringing up a haemophiliac child.  So far this case followed the settled pattern for a ‘wrongful birth’ case.

However in addition the child suffered from autism, unrelated to the haemophilia.  The risk of autism exists with every birth and therefore autism was a natural and foreseeable consequence of birth.  The mother would have terminated the pregnancy but for the doctor’s negligence, and in the absence of that negligence, and on the balance of probabilities, any child she subsequently had would not have had autism (each birth carrying the same small risk of autism).  As a consequence the mother could recover in addition to the additional costs of bringing up a haemophiliac child, the additional costs of bringing up an autistic child (following Chester v Afshar [2004] UKHL 41).

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So nothing new there then

Last week Lady Justice Rafferty told a conference of expert witnesses to use plain language and avoid ‘prolixity’.  Well, we all know what prolixity is (don’t we?), but what is plain language – it’s ‘call a pneumothorax a punctured lung’, and all that stuff.  And experts should identify what the real issues are in a case and address them.

Of course any expert who has heard me speak on the subject over the last 20 years, or read ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ since the first edition was published in 2011, or attended training with me and Professional Solutions, knows that already.  So hopefully they are all putting it into practice and merely nod when they hear it again.  And instructing lawyers should of course show impatience every time they pick up an expert report which  breaks these golden rules and take issue with their expert, for the sake of the lawyer using the report and the judge trying to make sense of it.

And don’t forget – the expert witness must be succinct, concise and analytical (Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662).

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