Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 28 September 2019.
In 2017, James and Hannah attended Dr Samuels, an infertility specialist, for the purpose of obtaining advice on undergoing in-vitro fertilisation (IVF).
During their consultation, James told Dr Samuels that he suffered from anti-thrombin deficiency (ATD), an inherited condition that causes increased risk of blood clotting.
James and Hannah were concerned their child would inherit the condition and sought Dr Samuels’ opinion.
Dr Samuels provided them with a post-it note containing the details of a genetic counsellor. He did not explain the referral and James and Hannah did not proceed with the consultation.
James and Hannah proceeded with the IVF and successfully conceived Jackson, who was born in January 2019. Unfortunately, Jackson was diagnosed as having inherited ATD and suffered a stroke a few days after his birth, which left him profoundly disabled.
James and Hannah commenced proceedings in the Supreme Court of NSW against Dr Samuels on the basis that had they been properly informed of the risk of Jackson inheriting ATD, they would have not proceeded with the IVF treatment.
James and Hannah claimed compensation for the pain and suffering of undertaking the IVF procedure, the physical and psychological injury arising from Jackson’s birth and the costs associated with raising a disabled child.
The Court held that Dr Samuels breached his duty of care by failing to properly explain the referral to the genetic counsellor. However, there was no evidence to suggest that Jackson’s stroke was caused by the ATD. Rather, it was coincidental to the condition and a normal risk of any pregnancy. For this reason, Dr Samuels’ negligence did not cause the harm and so James and Hannah were unsuccessful in their claim.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
