Parents pursue medical negligence claim appeal for disabled son

Date: Aug 20, 2015

The complexity of medical negligence claims has been highlighted in a recent appeal heard by the NSW Supreme Court.

The parents of a 15-year-old boy who became severely disabled following a stroke four days after his birth sought compensation from the doctor who provided them with advice on IVF treatments.

According to court documents, the boy’s father had a hereditary disease known as anti-thrombin deficiency (ATD), which can cause blood clots. The illness can be passed on when only one parent carries the gene.

However, the plaintiffs argued they were unaware of this fact, thinking instead that both parents needed the ATD gene in order for their child to inherit the condition. They said their medical practitioner was negligent for not fully informing them of the repercussions of going ahead with IVF.

The original trial

The boy’s parents alleged they would have deferred the decision to conceive if they had received adequate information regarding the inheritability of ATD. They also claimed they would have chosen not to have a child if they knew the risks.

As such, they were claiming damages for the physical and psychological injuries they have suffered raising their son, as well as compensation to cover the costs of raising him.

The trial judge agreed that the medical practitioner failed in his duty of care to tell the couple of how ATD is passed on. However, Justice John Hislop said the plaintiffs were unable to prove a link between the boy’s ATD and the stroke that caused the permanent disabilities.

The scope of the doctor’s duty of care would also not have extended to the extensive harm suffered. Furthermore, the chances of suffering the particular type of stroke the boy experienced – cerebral sinovenous thrombosis (CVST) – was considered too remote to be foreseeable as a risk. For these reasons, the judge dismissed the medical negligence claim.

Parents launch appeal

On appeal, the plaintiffs argued that the original judge erred in his decisions and shifted their focus away from the psychological and physical suffering they endured towards the breach of their rights to plan a family.

The appellate judges accepted that the parents may not have had a baby if they were aware of the hereditary nature of ATD. However, the judges reinforced the primary trial’s ruling by saying it was the CVST – and not the ATD – that was the root of the problem.

The parents had also signed legal documents warning of the risks of IVF treatment and the birth of abnormal babies, which they acknowledged covered conditions such as CVST. The appellate judges therefore dismissed the plaintiff’s claim a second time.

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