On 8 July 2011, Ms X had an ultrasound at a private clinic in Canberra, National Capital Diagnostic Imaging (NCDI) and was told that she was pregnant with twins and with a gestation of 19 weeks and five days. Ms X and her husband Mr Y were prepared to terminate the pregnancy if either twin was likely to be disabled, including a termination, if necessary, in respect of both twins.
A further ultrasound on 15 July 2011 revealed potential abnormalities in one of the twins, twin B. Further ultrasounds and tests were carried out between August and October, and the parents argued that other than the cardiac issue, they were never told of any other possible abnormalities with twin B.
A child was born on 3 November 2011 with severe disabilities, which have been categorised as VACTERL association, which refers to vertebral, anorectal, cardiac, tracheao-esophageal, esophageal, renal and limb abnormalities. In addition, the child suffers from developmental delay.
Court proceedings
The parents commenced proceedings in the Supreme Court of the Australian Capital Territory against the State, in negligence and claimed damages. The parents argued that they were never told about the condition of twin B, that had the correct information been given, they would have elected to terminate the pregnancy, and that the failure to provide the information was a breach of the duty of care.
The hospital conceded that it owed the parents a duty of care, but denied that there was any breach. Further, that if there was a breach, the breach did not cause the loss claimed.
Findings
His Honour Elkaim J noted that the central point was whether or not information about Twin B’s condition (or potential condition on birth) was disclosed to the parents, and whether the parents would have, or could have, secured a termination at the late stage in the pregnancy when the information should have been supplied.
Elkaim J found that the parents were not told about a possible TOF at any other time prior to the child's birth. The medical evidence supported a finding that the parents should have been informed not only of the suspicion of a TOF but also of its possible ramifications for the newborn child, prior to the child's birth. However, his Honour found that the parents had not established that they could or would have obtained a termination had there not been a breach of the duty of care owed. The hospital was found to have breached its duty of care but that the parents failed to prove their damages were caused by the breach.
Accordingly, Elkaim J dismissed the parents’ claim.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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