H v FETAL ASSESSMENT CENTRE

WRONGFUL SUFFERING CLAIMS IN SOUTH AFRICA- TO RECOGNISE OR NOT TO RECOGNISE

Presentation by Jessica Viljoen and Christopher Morcom

With Special Thanks to Advocates Paul Hoffman SC, Pat Van Den Heever and Natalie Lawrenson for

their input and tireless, admirable dedication to this case

• Wrongful conception

• Failed sterilisation OR abortion

• Healthy baby born

• Parents claim against negligent medical practitioner in their personal capacity

• Claim for medical and related birth expenses, and maintenance for child up until 18 years, 21 years or even older

• RECOGNISED in our law

• Wrongful birth

• Parents not informed of high likelihood of fetal abnormality

• Birth of disabled baby • Parents carried pregnancy to term based on the

erroneous belief that fetus was healthy- otherwise would have terminated

• Parents claim in their personal capacity for past and future medical expenses and maintenance of the child

• Must bring claim within normal 3 year prescription period

• RECOGNISED in our law

• Wrongful suffering

• For whatever reason (usually prescription) parents did not bring a wrongful birth claim

• Same factual situation- misdiagnosis in utero of high risk of fetal abnormality

• Mother deprived of her choice to terminate

• Disabled child born into a life of suffering as a result of medical practitioner’s negligence

NOT YET RECOGNISED in our law

PREVIOUS CASE LAW

• Friedman v Glicksman - The mother brought a claim for wrongful birth in her personal capacity, but also a claim for ‘wrongful life’

in her representative capacity on behalf of the minor child

- The Court dismissed the claim for ‘wrongful life’ on the following grounds:

1) It would be contrary to public policy to hold that it would be better for a party not to have the unquantifiable blessing of life albeit in a marred way;

2) Allowing this cause of action would open the flood gates of litigation and in particular would open the door for children to sue their parents for not terminating in situations where the parents were aware of the inherent risk of disability;

3) To allow a claim for general damages in these cases would be contrary to the allowable measure of damages in the law of delict. The Defendant in these cases is not responsible for the child’s disabilities, and yet he would be expected to compensate the child for such disabilities. And there is no measure to quantify such damage as the criteria would be the difference in value between existence and non- existence.

PREVIOUS CASE LAW

• Stewart v Botha SCA - The child in this case was born with a severe form of Spina Bifida - The mother brought a claim in her personal capacity for special damages, namely for the

costs of special education and past and future medical expenses flowing from the disability

- The appellant (the father) brought an alternative delictual claim on behalf of the child for compensation for the same harm

- It was stated that in delictual actions, where the act that caused the harm amounts to an omission rather than a positive action, it was only unlawful to that degree that there was a legal duty on the defendant not to act negligently in the circumstances- and that the question of whether or not a legal duty existed fell to be asked in light of public policy and community values

- The Court opined that ‘wrongful life’ cases pose a question which should not even be asked of the law- namely the comparison between existence and non- existence- “At the core of cases of the kind that is now before us is a different and deeply existential question: was it preferable- from the perspective of the child- not to have been born at all? If the claim of the child is to succeed it will require a court to evaluate the existence of the child against his or her non- existence and find that the latter was preferable… This question goes so deeply to the heart of what it is to be human that it should not even be asked of the law”.

The Purpose of the Law?

• Law, and the law of delict in particular, "is about people, their choices, human conduct and about regulating that human conduct. This is by no means different if that involves solving difficult problems. Denying an answer because the law should not deal with questions equals denial of doing justice once the question has been raised. From the moment a certain issue, however difficult it may be, has been brought up, the law must step up to the plate and do what it does best i.e. decide highly controversial societal issues through the courts" [Giesen, The Use and Influence of Comparative Law in 'Wrongful Life' cases]

H v Fetal Assessment Centre-

The Facts of Our Case: • The Plaintiff is the mother of a child who was born with Down

syndrome • Parents only approached us some 4 years after the child's birth, so any

potential wrongful birth claim had prescribed • Plaintiff had gone for all standard fetal assessment scans throughout

the pregnancy- including the 12 week Nuchal Translucency scan & the 21 week fetal anomaly scan- advised that everything was healthy and normal, and that she was at very low risk of fetus having Down syndrome

• Based on this medical advice- Plaintiff carried to term, had she been made aware of the high risk of Down syndrome- would have terminated

• The defendants excepted to the claim on the basis that the particulars of claim did not disclose a cause of action- the exception was upheld in the High Court and we appealed directly to the Constitutional Court

The Conundrum of Wrongful Suffering Claims:

• These claims have long been a debated and contentious issue in our

law, and internationally • If one simply discards the abhorrent and negative terminology of

'wrongful life', and peels away the circular logic of the naysayer- the very simple and logical sentiment is this: the child is here, the child exists, and it exists in its current state of suffering as a direct result of the negligent omission of an expert medical practitioner

• The negligence of the medical practitioner in failing to properly and dutifully inform the mother of the true state of affairs concerning the health of the fetus (thereby denying her, her right to choose) resulted in the child being born in its current state of disability and suffering- there is NO need to indulge in the paradoxical comparison of existence with non- existence

The elements of Delict:

• 1) Harm- causing conduct • It is argued that a wrongful suffering claim fails at the first hurdle, as one is not

dealing with a situation wherein the defendant caused the disability / harm to the child

• Constitutional Court pointed out- a similar absence of harm to person or property of the parents exists in wrongful birth claims, and yet this has not posed an insurmountable obstacle to those claims

• "the harm in the misdiagnosis was initially directed at the mother and parents, and that its consequence manifested in relation to the child only upon birth... when a medical practitioner fails to inform the mother that her child will be born with a congenital disability, this deprives the mother of the opportunity to make an informed choice to terminate the pregnancy. If the child is then born with a congenital disability and the parents suffer patrimonial loss in the form of an unwanted financial burden in maintaining the child, our law recognises that the mother or parents have a claim in delict against the medical practitioner. Recognising a child's claim asks us to take a step further...The further step does not suddenly make the problem metaphysical. It remains a practical legal issue. Who should bear the harm or loss now, the child or the medical expert? [Froneman, J H v Fetal Assessment Centre]

The elements of Delict:

• 2) Wrongfulness • Policy considerations and legal convictions of the community- is the harm- causing

conduct regarded as acceptable or not, and is it reasonable to impose liability in the circumstances?

• By conveniently labelling these claims as 'wrongful life'- it is intimated that the claim is grounded in the notion that there is something untoward about the child's existence- but this is NOT so

• "The plaintiff in a wrongful suffering action does not maintain or assert that his existence is wrongful or that his life should be terminated. The wrong alleged is the negligence of the defendant that has directly resulted in the present suffering."

• One must caution against couching these claims in negative terminology, as this disguises what is ultimately a value judgment which the courts are obliged to make in terms of constitutional imperatives.

• "acknowledging the paradox is not necessarily dispositive of the real issue, namely whether our constitutional values and rights should allow the child, in the circumstances of this case, to claim compensation for a life with disability" [Froneman, J]

The elements of Delict:

• 3) CAUSATION • (a) Factual Causation • The Constitutional Court Judgment is categorical in holding that there may be a factual causal nexus

between the medical practitioner’s misdiagnosis and the losses suffered and to be suffered by a Plaintiff in wrongful suffering cases as a result of his/her condition:

• “The pre-natal misdiagnosis of a medical condition or congenital disability is not the cause of the condition or disability itself. But if the mother would have chosen to undergo an abortion had she been aware of the correct diagnosis, then birth would not have ensued. But for the wrong diagnosis, the birth would not have occurred. Factual causation, in the sense of the misdiagnosis being part of the chain of events that led to the birth, may then be established. Policy considerations may then still prevent establishing legal causation, but that is also an issue that can only properly be determined when all the facts are established at a trial.” [Froneman, J H v Fetal Assessment Centre]

• In other words, as per the test for factual causation, the medical practitioner’s misdiagnosis/negligence is a necessary and sufficient condition for the suffering experienced by a Plaintiff.

• The judgment exposes the ostensible hurdle to proving factual causation, that is the apparent requirement of comparing existence to non-existence, as being misleading.

• “The harm, if any, is not the birth itself but the effect of the defendant’s negligence on the [parents] resulting from the denial of the parents of their right, as the case may be, to decide whether to bear the child with a genetic or other defect.” [Ruda, A I Didn’t Ask to Be Born]

• The medical practitioner is not liable for compensating a Plaintiff in a wrongful suffering case for the harm he experienced as a result of being born per se, as there is no inherent harm in being born as opposed to not being born, and if there is any harm, then such harm is unquantifiable. Instead, the medical practitioner is responsible for the suffering that a Plaintiff experiences due to his/her handicap, as the medical practitioner breached his duty to the said Plaintiff by misdiagnosing and misinforming his mother, as but for those actions the Plaintiff would not have been born, and by extension would not be suffering from his handicap. Therefore, inter alia the term ‘wrongful suffering’ is preferable to ‘wrongful life’.

The elements of Delict:

• (b) Legal Causation • “We thus need to go further. If, despite [the] clarification that the proper approach

[to the non-existence paradox] involves an inevitably evaluative legal choice in accordance with the Constitution, we nevertheless conclude that the claim cannot be sustained at all, no matter what the facts of a particular case may be, the appeal must still fail on the basis of the exception. We cannot do that, however, on the basis of the exception before us if the ‘factual situation is complex and the legal position uncertain’. For if we reach the conclusion here that it is not impossible to recognise the claim, depending on the facts that might emerge at the trial, the appeal must succeed.” [Froneman, J H v Fetal Assessment Centre]

• The test is a flexible one wherein issues of remoteness are ultimately determined by broad policy considerations as to whether right-minded persons would consider that the imposition of liability on the Defendant for the consequence concerned is reasonable and fair.

• Subsidiary tests used to determine what legal policy is: • Direct consequences; • Foreseeability; • Novus Actus Interveniens.

The elements of Delict:

• 4) Negligence • it is clear that a reasonable medical practitioner would foresee the reasonable possibility of his/her

conduct causing a Plaintiff to suffer due to his handicap, and further that a reasonable medical practitioner would have taken reasonable steps to guard against the suffering/breach of duty by correctly diagnosing the Plaintiff’s condition.

• It should be noted that it is unnecessary that the particular consequence, or the extent of the damage, or the particular manner of its occurrence be reasonably foreseeable. To establish negligence, it is submitted, it is sufficient if the Defendant should reasonably have foreseen the possibility of some harm occurring to another as a consequence of their negligent action. [Van Der Walt, J C South African Law of Delict]

• a recognisable risk of harm must be unreasonable in order to constitute negligence. The risk is unreasonable if it outweighs the utility of the particular conduct. In this case, there is no social value in the medical practitioner’s misdiagnosis, and therefore, no argument can be made for the reasonably foreseeable risk being reasonable.

• With regard to that burden, it bears emphasis that any further development of the law of delict would have to be considered on its own merits. Policy considerations that are highly influential in determining the wrongfulness and legal causation requirements would certainly come to the fore and on their basis alone dictate that certain claims be treated differently.

The elements of Delict:

• Legal Duty • who does the medical practitioner owe the legal duty to, and on what basis, i.e. who was the medical practitioner

negligent towards?

• finding of a legal duty between the medical practitioner and the fetus will shore up a finding of not only wrongfulness, but also legal causation and negligence

• finding of a legal duty and a finding of negligence are strongly related, insofar as that the traditional test for the existence of a legal duty is an application of the first two questions of the negligence enquiry. Once it has been established that a particular duty of care exists, the question as to whether it has been breached is partially answered by determining the particular mode/form of standard of the legal duty via the negligence requirement enquiry.

• the Defendant owes a legal duty to persons or a particular class of persons to whom harm may reasonably be foreseen.

• “…the duty of care owed by the medical practitioner, is ultimately, and on a proper analysis of whose rights are most affected, a duty of care owed to the child whose well-being is foreseeably at risk as a result of any negligence in the carrying out of the type of assessment to which the fetus…, was subjected by the respondent. In the same way that a parent takes medical decisions on behalf a minor, the parent…takes medical decisions on behalf of a fetus, which is unable to state a choice between non-life and life in an impaired state, and the parent thus effectively acts in the best interests of the fetus.” [Froneman, J H v Fetal Assessment Centre]

• In the SCA case of Mtati it was held that “the right of a child to sue for pre-natal injuries recognised in this judgment is expressly based on the holding that the right of action only became complete when the child was born alive”. – Thus the right of the child to a legal duty owed to it, only accrues to the child upon its’ birth

Chipping away at weak arguments

• 'Sanctity of Life' - Argument AGAINST recognition of wrongful suffering claims: • tout the preciousness of human life as a core value- and are of the view that recognition of such

claims would thwart the value placed on sanctity of life and therefore be against public policy • Response- Argument FOR recognition of wrongful suffering claims: • sanctity of life arguments have already been eroded in SA by the Choice of Termination of

Pregnancy Act- our law specifically recognises a woman's right to choose • "Having regard to the provisions of the Choice on Termination of Pregnancy Act, the sanctity of life

premise does not accord enough weight to the allowable limitations on the right to life that abortion legislation inevitably brings into play in our law. Claims for wrongful suffering and wrongful birth are based on conceptually the same set of facts. Since termination of pregnancy is legally sanctioned and undermines the sanctity of life, logic and consistency dictate that the sanctity of life argument cannot bar a wrongful suffering cause of action while at the same time allowing a wrongful birth action". [Adv Pat Van Den Heever- Pre-Natal Medical Negligence in SA Medical Law]

• the intention behind wrongful suffering cases is NOT to assert that the disabled child's existence is wrongful or that his life should be terminated- "the legal issue is not the 'wrongful life' of the child, but whether the law should allow a child to claim compensation for a life with disability“ [H v Fetal Assessment Centre]

Chipping away at weak arguments

• 'Opening the Flood Gates'- Argument AGAINST recognition of wrongful suffering claims:

• allowing the child to claim against the negligent medical practitioner opens the door for disabled children to claim from their parents who did not terminate them in instances where they were aware of the high risk of the fetus's abnormality and chose to have the child anyway instead of terminating

• Response- Argument FOR recognition of wrongful suffering claims: • Abortion is the right of the mother- it cannot be a right which vests in the

child- there can be NO duty owed to the child to terminate the pregnancy • "For a separate claim against the parents or mother, the child would have

to show that it was wrongful and negligent for the mother not to have an abortion while being aware of the disability before giving birth. This might prove difficult having regard to the parents' (particularly the mother's) right to free and informed choice in relation to reproduction" [Froneman, J H v Fetal Assessment Centre]

Chipping away at weak arguments • 'Impossibility of Quantifying the Claim'- Argument AGAINST recognition of wrongful

suffering claims: • Friedman case and Stewart case- the only measure of damages can be the difference in

value between non- existence and existence in a disabled state- making it an impossible calculation.

• Allowing such a remedy would endorse the notion that a person would be better off not having been born at all, rather than being born disabled

• Response- Argument FOR recognition of wrongful suffering claims: • "the reality of the 'wrongful life' concept is that such a plaintiff both exists and suffers,

due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life" [Curlender v Bio-Science Laboratories]

• Our law already recognises the claim of parents in wrongful birth cases for recovery of patrimonial damages in respect of past and future medical expenses as well as maintenance for the child- the wrongful suffering case would run co-extensively in this regard (there would be no duplication of claims)

• "By awarding damages in a wrongful suffering action the court is not endorsing a claim that such disabled individual would be better off not having been born, but rather that such disabled individual would be better off with access to resources". [Adv Paul Hoffman, Adv Pat Van Den Heever, Adv Natalie Lawrenson- H v Fetal Assessment Centre]

CONCLUSION: “the root of the root, the bud of the bud…”

• Constitutionally- wrongful suffering cases should be recognised- “the answer given in our law and in many other jurisdictions is that we can establish harm only by comparing existence with non-existence. But this risks hiding a value choice. And it is a choice judges under our Constitution need to acknowledge openly and defend squarely when they make it” [Froneman, J H v Fetal Assessment Centre]

• Children’s Rights- wrongful suffering cases should be recognised- “… judgments that place the greatest emphasis on the rights of children tend to be the ones that find that such [wrongful suffering] claims exist, ‘although in deciding whether or not to bear such a child parents properly, and undoubtedly do, take into account their own interests, parents also presumptively consider the interests of their future child. Thus, when a defendant negligently fails to diagnose an hereditary ailment, he harms the potential child as well as the parents by depriving the parents of information which may be necessary to determine whether it is in a child’s own interests to be born with defects or not to be born at all’, our Constitution explicitly protects the interests of children” [Froneman, J H v Fetal Assessment Centre]

- In addition to Children’s rights as enshrined in our Constitution and in the Children’s Act, “the common law principle that the High Court is upper guardian of all children obliges courts to act in the best interests of the child in all matters concerning the child. As upper guardian of all dependent and minor children, courts have a duty and authority to establish what is in the best interests of children.” [Froneman J, H v Fetal Assessment Centre]

• Policy considerations- wrongful suffering cases should be recognised- “Denying the existence of wrongful life actions erects an immunity around health care providers whose negligence results in a child who would not otherwise have existed, being born into a life of suffering. Here, that suffering is profound, substantial and apparently lifelong. The immunity would be accorded regardless of the gravity of the acts and omissions of negligence that could be proved. The law should not approve such a course which would afford no legal deterrent to professional carelessness or even professional irresponsibility” [ Kirby, J Harriton v Stephens]

• Delictually- these claims meet the criteria for the elements of delict and must be recognised. “A delict is the act of a person that in a wrongful and culpable way causes harm to another”- by omitting to properly diagnose a fetal abnormality in utero, the medical practitioner (in breach of his legal duty) negligently deprives the mother of her right to choose to terminate, which in the circumstances she would have done, had she not been under the erroneous belief that the fetus was healthy, and as such the harm caused is a child, born into a life of disability and suffering, who is entitled to compensation in his personal capacity as the legal duty accrues to him upon his birth.