Less and Carter v Hussain

As common law practitioners we often extol the virtues of having several strings to our bow. It is not often, however, that travel authorities are cited in the context of clinical negligence. In the High Court decision of Less and Carter v Hussain ([2012] EWHC 3513), counsel for the Claimants did just that, in contending that a consultant gynaecologist owed a duty in contract to the partner of a patient.

Ms Less and Mr Carter wished to have a baby together. Since Ms Less had a complicated medical and obstetric history, she visited Ms Hussain privately for advice before trying for a further child. She was concerned in particular because she had a thromboembolic condition, which had led to deep vein thrombosis (“DVTs”) and, in a previous pregnancy, a pulmonary embolism. She also had multiple fibroids.

Following her consultation, Ms Less had the understanding that there was no reason not to conceive and she could “go ahead”. She had a scan but was not told to arrange a further appointment with Ms Hussain to discuss the scan. She did not receive a follow-up letter.

A year after later, Ms Less fell pregnant. She had a difficult pregnancy as a result of a condition associated with fibroids called "red degeneration". Sadly, six months into her pregnancy her child was stillborn as a result of hypercoiling of the umbilical cord, which was unrelated to the fibroid condition or DVT.

HHJ Cotter Q.C. held that there had been a breach of duty, as Ms Less was not adequately advised regarding the need for a second appointment. Both her claim and that of her partner, Mr Carter, failed as they were unable to establish that if they had been given proper advice that they would have chosen to avoid conception.

Although strictly obiter, HHJ Cotter went on to consider whether Mr Carter should recover damages for mental distress for breach of contract. Such damages are not recoverable in negligence, therefore Mr Carter argued instead that the contract pursuant to which Ms Less consulted Ms Hussain was also for his benefit, relying on Jackson v Horizon Holidays ([1975] 1 WLR 1468). Furthermore, he contended that an important purpose of the contract was to gain information which both prospective parents could use to make an informed decision about whether to conceive a child and in becoming so informed, gain some “comfort, peace of mind or other nonpecuniary personal or family benefits” (relying on Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37).

HHJ Cotter accepted that the dominant purpose of the contract was to secure peace of mind but held that this was as regards Ms Less only. Mr Carter was not identifiable from the contractual information, in contrast to holiday cases where the booking usually speaks for itself.

From holiday cases to the bailment of sperm, this decision demonstrates the breadth of areas from which clinical negligence cases must draw. On a prosaic level, it is significant also because it has limited the scope for partners to claim damages for shock arising from medical procedures that have gone wrong.