It was accepted that, with correct medical advice, the claimant would have made a different decision and her child would not have been born. That established factual causation. It did not answer which costs were within the scope of the doctor’s duty to advise about the risk of haemophilia.
The consultation and the birth
Ms Meadows sought advice about whether she carried the gene for haemophilia. The ordinary blood tests arranged by the practice could establish whether she had the condition, but only genetic testing could establish whether she was a carrier.
On 25 August 2006 Dr Hafshah Khan, another doctor in the practice, told her that the results were normal. From that consultation and the earlier one, Ms Meadows was led to believe that any child she had would not have haemophilia. Dr Khan did not advise her that genetic testing was still required.
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Her child was subsequently diagnosed with haemophilia and testing confirmed that she was a carrier. On the accepted facts, correct advice would have led to genetic testing and to the pregnancy being terminated.
The child was also diagnosed with autism, which was unrelated to haemophilia. Dr Khan admitted liability for additional costs attributable to haemophilia. The dispute concerned costs attributable only to autism.
The decisions below
Yip J held that Ms Meadows could recover the additional costs of both conditions and awarded £9 million, inclusive of interest. She treated the case as close to earlier Court of Appeal decisions in which mothers who had wanted to avoid having any further child recovered the extra costs of a child’s disability, even though the disability was not directly connected with the negligence. Her reasoning was that, but for Dr Khan’s mistake, this pregnancy would have been ended, and that it was not fair to distinguish a mother who wanted to end this pregnancy from one who wanted to avoid any pregnancy.
The Court of Appeal allowed Dr Khan’s appeal and reduced the award to £1.4 million. Nicola Davies LJ held that the consultation was directed only to whether Ms Meadows carried the haemophilia gene, not to whether she should become pregnant at all. The autism costs were not within the risks Dr Khan had undertaken to protect her against.
The limits of the doctor’s duty
Ms Meadows argued that the approach in South Australia Asset Management Corpn v York Montague Ltd, often called the scope-of-duty principle, belonged to commercial claims for financial loss and should not limit a clinical negligence claim. She said that A would not have been born but for the mistake, that autism was foreseeable, and that all the extra costs therefore flowed from the lost chance to end the pregnancy.
Lord Hodge and Lord Sales, with whom Lord Reed, Lady Black and Lord Kitchin agreed, rejected that argument. They held that there is no principled reason to exclude clinical negligence from the general rule that a defendant is not liable for loss of a kind falling outside the duty of care. Factual “but for” causation and foreseeability cannot bypass the question of what risk the defendant had to guard against.
The majority identified the purpose for which Ms Meadows sought advice. She wanted to know whether she carried the haemophilia gene so she could make an informed reproductive decision about that condition. The doctor’s undertaking concerned this specified risk. It did not extend to all risks associated with pregnancy.
The same point can be tested by asking what would have happened if Dr Khan’s information had been correct and Ms Meadows had not been a carrier. A would still have been born with autism. That showed that the autism costs were not a consequence of the information being wrong. By contrast, in the earlier cases the service was to prevent any further child being born, so the extra costs of disability, whatever its cause, were within the duty. This was not a novel situation requiring a separate decision about what was fair, just and reasonable: established principles answered it.
A shared result, with a difference in method
Lord Burrows and Lord Leggatt agreed that the appeal should be dismissed, but did not adopt the majority’s six-stage model of negligence. Lord Burrows treated the purpose of the advice as central and the allocation of risk as fair and reasonable: the doctor took the risk of haemophilia, while the mother, like any mother considering pregnancy, took the other risks. He also used the counterfactual as a cross-check. Lord Leggatt said that a doctor is not fairly made responsible for consequences the patient would have suffered even if the advice had been sound, and that autism had no causal connection with the fact that Ms Meadows carried the haemophilia gene.
Verdict: The Supreme Court unanimously dismissed Ms Meadows’ appeal. The doctor was responsible for the additional costs attributable to haemophilia. The costs attributable only to autism fell outside the duty. The Court of Appeal’s £1.4 million award stood.
Source: Khan v Meadows [2021] UKSC 21
