H v FETAL ASSESSMENT CENTRE WRONGFUL SUFFERING CLAIMS IN SOUTH - - PowerPoint PPT Presentation
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
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
in her representative capacity on behalf of the minor child
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.
costs of special education and past and future medical expenses flowing from the disability
compensation for the same harm
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
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”.
syndrome
potential wrongful birth claim had prescribed
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
made aware of the high risk of Down syndrome- would have terminated
the High Court and we appealed directly to the Constitutional Court
law, and internationally
'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
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
dealing with a situation wherein the defendant caused the disability / harm to the child
insurmountable obstacle to those claims
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]
conduct regarded as acceptable or not, and is it reasonable to impose liability in the circumstances?
claim is grounded in the notion that there is something untoward about the child's existence- but this is NOT so
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."
disguises what is ultimately a value judgment which the courts are obliged to make in terms of constitutional imperatives.
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]
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:
correct diagnosis, then birth would not have ensued. But for the wrong diagnosis, the birth would not have
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]
a necessary and sufficient condition for the suffering experienced by a Plaintiff.
requirement of comparing existence to non-existence, as being misleading.
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]
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’.
[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]
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.
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.
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]
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.
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.
negligent towards?
wrongfulness, but also legal causation and negligence
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.
foreseen.
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]
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
claims would thwart the value placed on sanctity of life and therefore be against public policy
Pregnancy Act- our law specifically recognises a woman's right to choose
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]
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]
suffering claims:
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
child- there can be NO duty owed to the child to terminate the pregnancy
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]
suffering claims:
value between non- existence and existence in a disabled state- making it an impossible calculation.
having been born at all, rather than being born disabled
due to the negligence of others. It is neither necessary nor just to retreat into meditation
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)
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]
“the root of the root, the bud of the bud…”
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 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]
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]
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]
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.