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 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]