The question turns as to whether the doctors owed a duty to the father to allow him the opportunity to avoid having a disabled child. No case so far can be taken to clearly decide this issue, especially since the ruling in McFarlane.
Following Barclays Bank v Customs and Excise (2005) to decide a novel case concerned with pure economic losses, three different approaches should be followed, and each of them should yield to the same conclusion.
The Caparo test
The Caparo (Caparo Industries v. Dickman [1990] 2 A.C. 605) test consists of three stages; the foreseeability test, the proximity test and the question of whether it would be fair, just and reasonable.
The claimant being the father of the child it seems reasonably foreseeable that a negligent diagnosis as to the health of the child in the womb resulting in the birth of a severely disabled boy would cause serious financial harm to his parent and sole carer.
In the somewhat similar case of Hardman v Amin the question of proximity was easily resolved as it was as to the proximity of the relationship between the doctors and the mother, being herself the patient. However it would seem unfair if such consideration could stop the claimant in this case from recovering damages, because his wife and mother of his child passed away. The question of proximity is often undistinguished from policy issues; if the Court finds that it would be fair, just and reasonable to hold that a duty of care should be owed in the case, the relationship will be deemed of sufficient proximity. At any rate the claimant being the father of the child, the sole carer left, and the only one who could be entitled to call the work of the doctors into question in a court of law, the relationship seems as proximate as one could be.
Turning on to the more complex issue as to whether it would be fair, just and reasonable to hold that the doctors owed such duty to the claimant we can note that prior to McFarlane it seemed quite clear that parents who had to cope with an unwanted child due to clinical negligence (either because of a failure to diagnose properly or because of failed sterilisation) could recover the cost of maintenance of the child, whether healthy or disabled (Emeh v. Kensington, Chelsea and Westminster A.H.A. [1985] Q.B. 1012, McClelland v. Greater Glasgow Health Board, September 23, 1998, Salih v. Enfield Health Authority [1991] 3 All E.R. 400)In McFarlane (a failed sterilisation procedure gave rise to the birth of an healthy child) however the Law Lords dismissed the claim on policy grounds, Lord Millett considering that the blessing of a healthy child outweight any possible ‘damage’ as a result of it, Lord Steyn applying principles of distributive justice; it would seem normal, logical to anyone that the ‘burden’ of bringing up an healthy child should fall on the parents, and Lord Clyde considering the expenses the defendant would have to incur if a duty was found would be out of proportion with his culpability.
The issue as to when the baby born is disabled was not directly addressed. Judge Henriques in Hardman v Amin reviewed the case concluding it should not and did not apply to the situation where the child is disabled as a result of such clinical negligence. The subsequent Court of Appeal’s decisions in Parkinson v St James and Seacroft University Hospital NHS Trust (2001) EWCA Civ 530 and Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ 88 seemed to confirm the view that damages for the cost and maintenance of a disabled child born because of the negligence of the defendant.
In such cases therefore it would be fair, just and reasonable to hold the doctors liable in negligence for the (unwanted) birth of a disabled child; it would meet the principles of distributive justice and liability would not be out of proportion with the culpability since the doctors should be taken to have known the disastrous consequences such birth could have upon the parents.
We can note that no floodgate argument could be introduced here, and it would appear unsound to introduce an idea of conflict of interest; that the doctors could owe an unborn child, as a patient, a duty to keep him alive would seem to defeat the purposes of the Abortion Act 1967 which gives parents the right to decide to terminate the pregnancy when, for example, the baby is severely disabled.
However difficult issues remain such as whether such decisions mean that the birth of a disabled child is anything but a blessing…
Overall as the law stands it would seem that the Caparo test would be satisfied here; the harm suffered was reasonably foreseeable, the relationship was one of sufficient proximity and it would be fair, just and reasonable to hold that the doctors had a duty toward the father to diagnose properly the injury suffered by the unborn baby.
The ‘voluntary assumption of responsibility’ test
The voluntary assumption of responsibility test is considered redundant by some (Lord Griffith in Smith v Eric Bush); if the Court concludes that in the particular case it would be fair to find a duty of care the defendant will be deemed to have assumed responsibility towards the claimant. In other circumstances a use and meaning was found for the test (Lord Steyn in William v Natural Health Foods Ltd); when the defendant could clearly be said to have disclaimed responsibility (no assumption of responsibility would then be found) or when he indicated that the claimant could safely rely on him. In the case before us it would seem, on balance of probability, that the test would be satisfied; one could reasonably find that the doctors somehow indicated to the father that they could safely be relied on when taking care of the claimant’s wife and child.
The incremental approach
A duty of care will usually be found where the existing cases indicate that such should be the case. We can therefore refer to Harman v Amin in which the judge clearly refused to apply McFarlane to the case of a disabled child and to do so relied on numerous cases preceding McFarlane (such as Emeh v. Kensington and Chelsea and Westminster Aea Health Authority [1985] 1 Q.B. 1012). It would not seem to depart from the general stance of the law that to hold that the doctors owed the father of the unborn child a duty to diagnose properly his condition, as it seems to be the law in relation to the mother when she is alive, and whether such condition is a result of an accident or a disease or a genetic abnormality.
We can conclude that the doctors owed Sunita’s husband a duty to diagnose properly the injuries suffered by Ashok before they decided to keep the mother artificially alive so as to carry the baby to term.
Breach of the duty of care
To show that the doctors breached their duty in failing to diagnose properly the injury suffered by the unborn child and in keeping Sunita artificially alive despite the likelihood of baby Ashok to be born with severe disabilities, we will need to prove that no body of reasonable experts would have acted this way (Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582). The test of whether a clinician has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled clinician exercising and professing to have the relevant special skill. It may not be enough for even a world-renowned obstetric to testify that he would not have acted the way the doctors of the Milton Hospital did if they, in turn, can show that other skilled doctors would have acted the way they did. In Bolitho (Deceased) v City and Hackney HA, [1998] A.C. 232) however it was made clear that while the Court will normally never depart from such rule and should not choose between competing expert opinions, in some circumstances the judge might find that even if some experts are prepared to testify in favour of the defendant to act the way they did was still unreasonable.
Causation
There seem to be no problem as to causation; clearly ‘but for’ the intervention of the doctors baby Ashok would not have been born disabled (he would not have been born at all); if they had diagnosed properly the risks involved either they or Sunita’s husband would have taken the decision not to go ahead with the procedure and to terminate the pregnancy. The fact that the doctors’ actions were not the sole reason for the disability of the child, that the child would not have been disabled if Rahul had not caused the accident in the first place, is mostly irrelevant.
Recoverable damages
Following the recent cases mentioned above will be awarded the extra cost associated with the disability of the child ; normal costs relating to the upbringing of a child (healthy or disabled) will not be included (following McFarlane). Sunita’s husband should be able to recover the expenses that will be needed to accommodate the disabled child due to his disability, to provide for his special needs, the cost of any treatment needed …
Concluding comments on Rahul’s liability
We can note that Sunita’s husband should be able to sue Rahul in negligence for the accident, which caused the death of his wife (considering a possible reduction in the damages awarded due to contributory negligence, by Sunita in not wearing her seat-belt). In relation to the disabled Ashok, if the doctors can escape liability by showing that their actions were not unreasonable then Rahul might be held liable instead since the chain of causation would not have been broken by the medical intervention (Knight v Jones [1982] 1 WLR 349 (CA)).
WORD COUNT : 2190
MARK OBTAINED : 72
