Failure to warn gives rise to wrongful birth claim: Nouri v Australian Capital Territory [2018] ACTSC

by | Oct 2, 2018 | Health Blog

The Supreme Court of the Australian Capital Territory has found that a couple whose child was born with significant disabilities had not established that the hospital’s failure to inform them about their child’s potential condition prevented them from terminating the pregnancy.

Saba Nouri was born on 3 November 2011 to the plaintiffs with severe disabilities. Saba’s disabilities were characterised as VACTERL association – a collection of vertebral, anorectal, cardiac, tracheo-oesophageal, oesophageal, renal and limb abnormalities.

The plaintiffs submitted that the hospital should have informed them about concerns for Saba’s health that arose during the pregnancy. Had that been done, the pregnancy of Saba (and if necessary, her twin brother) would have been terminated and the extensive costs associated with Saba’s upbringing would have been avoided.

The Court heard from a number of experts that the full extent of Saba’s disabilities could not have been established until after her birth.  However, the Court found that the hospital was nevertheless under a duty of care to inform the parents, to enable them to make informed decisions about treatment, including termination of pregnancy, of all matters reasonably relevant to the wellbeing of the mother and the foetus, including conditions which might reasonably be expected to materially affect the foetus following birth.  The duty to inform arose when the hospital possessed enough reliable information to allow it to reach those conclusions.

In finding that the health practitioners and hospital had breached their duty of care to the plaintiffs to warn them of potential concerns about their child’s health , the Court made several comments about the inadequacy of the medical records made in relation to the first plaintiff’s pregnancy, going so far as to say that errors and omissions in the medical records were themselves tantamount to negligence, although this did not form part of the plaintiff’s case.

Whilst the Court found that the hospital failed to provide the plaintiffs with information about Saba’s condition (or potential condition on birth), the plaintiffs failed to provide their damages were caused by the breach.

The Court found that the hospital should have informed the plaintiffs about the concerns about Saba’s health on 22 September 2011.  However, at that time, the first plaintiff, Saba’s mother, was 30 weeks and four days into the pregnancy.  As such, the Court found that the logistics of procuring a termination at this late stage in the first plaintiff’s pregnancy were prohibitive and that it was unlikely that the plaintiffs would have been able to terminate the pregnancy.

In deciding this, the Court considered whether a termination of pregnancy could have taken place having regard to the State and Territory laws and ethics committees and whether a late term termination was available in the US.

Although the parties agreed that Saba required 24-hour care and that her disabilities would require lifelong management, the notional assessment of damages assessed the costs that would be incurred by the plaintiffs for Saba’s care up to 18 years of age.  The decision was reinforced by the fact that after Saba reached 18 year of age, there would be a legal obligation on NDIS to support her.

To read the full decision, click here.

Prue Campbell

Prue Campbell