The recent High Court case of Meadows v Khan has considered under what circumstances a claim can be brought for the failure to identify that someone is potentially a carrier of a hereditary condition and that person goes on to have a child who suffers from the hereditary condition and other disabilities.
The case was brought by a woman who had received inappropriate medical advice when she sought testing to find out whether she was a carrier of the genes for haemophilia. As a consequence, she believed that she was not a carrier of haemophilia. In fact, had she been properly advised, she would have had further testing and discovered that she was a carrier. When she later became pregnant, she would have had antenatal testing and the pregnancy would have been terminated if it was found that the child was affected.
Due to the inappropriate advice she received, the Claimant believed that she was not a carrier of haemophilia and several years later went on to carry a pregnancy to term. It was subsequently discovered that her son had both a very severe form of haemophilia and was autistic. On bringing the claim, it was agreed that she should be able to recover for the costs associated with her son’s haemophilia but the Defendant argued that she should not be able to claim compensation for the costs of meeting the additional needs caused by his autism. The differences in the level of compensation were stark. The parties agreed that, if the costs of associated with both conditions were included, the total compensation should be £9million; whereas if the costs associated with the autism were not included the compensation would only be £1.4million.
This was said to be the first reported case relating to the failure to diagnose a hereditary condition, in which the child went on to have two serious, but unrelated, disabilities. Following a detailed consideration of the legal principles, the Court decided that costs associated with the autism should be included and the Claimant recovered the full amount of compensation to meet the needs of her son caused by both the haemophilia and the autism.
This area of law is complex. Currently, it is not possible to bring a claim for the cost of bringing up a healthy child where the pregnancy should have been prevented by appropriate medical treatment (for example, cases in which a sterilisation procedure fails and the result is an unplanned pregnancy). However, if a child is born with a significant disability it is possible to bring a claim for the substantial costs of meeting a child’s additional needs caused by their disability.
Similarly, where there is a negligent failure to diagnose fetal anomaly during the pregnancy (for example, a genetic condition such as haemophilia or Down’s Syndrome or a physical problem affecting the fetus such as spina bifida or an absent corpus callosum), it is often possible to bring a claim for the cost of meeting the needs of the child caused by their disability.
The time and financial cost to families of meeting the needs of a disabled child are very significant. In appropriate circumstances a legal claim can provide financial security and help to ensure the best possible quality of life for the affected child.