Causation in medical negligence claims can be complex and is often highly contentious. You need to establish that the asserted negligence was responsible for the patient’s injury or loss.
Sometimes, it is as simple as asserting that but for “A”, “B” would not have occurred.
More often than not it is far less straightforward.
The UK decision of Khan v Meadows [2021] UKSC 21 is a good example of how challenging this issue can be.
Ms Meadows asked her GP, Dr Khan to arrange testing to see whether she was the carrier of a hereditary disease, haemophilia. Although the testing Dr Khan arranged showed a negative result, additional testing was required which was not performed.
Years later, she had a baby boy, who suffered from haemophilia.
Ms Meadows asserted that, had she been advised correctly by Dr Khan she would have terminated the pregnancy.
Dr Khan admitted that he was liable to compensate Ms Meadows for the costs of caring for a child with haemophilia.
This was a straightforward but for “A”, “B” would not have occurred scenario.
However, an additional complicating matter was that Ms Meadow’s son was also born with autism.
The question before the Courts was whether she was also entitled to recover the costs of raising a child with autism from Dr Khan?
The original Court deciding the matter, the High Court, decided in Ms Meadow’s favour however Dr Khan appealed to the Court of Appeal and was successful.
Ms Meadows appealed from that decision.
The final decision, of the Supreme Court, concluded that although on a test of factual causation, Ms Meadows would not be incurring the costs of raising a child with autism if Dr Khan was not negligent, the duty of care owed by Dr Khan to Ms Meadows did not extend to risks unrelated to the haemophilia that could arise during the pregnancy.
The compensation awarded was therefore limited to the costs of raising a child with haemophilia.
Although Australian Courts are not required to adopt the legal principles established by UK Courts, I think it likely that the same outcome would occur in Australia.
Investigating and arguing issues of causation is challenging and complex. It requires the expertise of an experienced medical negligence lawyer to ensure that all compensable losses are explored and recovered. Call our office today to make an appointment.