Law Report: 4 December 1997: No award of damages where pregnancy was wanted

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Damages for the expenses of pregnancy and the cost of bringing up a child would not be awarded where the pregnancy had been wanted and the child was healthy, notwithstanding that the mother would not have become pregnant had the health authority not negligently failed to alert her of a serious condition which could be exacerbated by pregnancy.

R v Croydon Health Authority; Court of Appeal (Lord Justice Kennedy, Lord Justice Morritt and Lord Justice Chadwick) 25 November 1997

The Court of Appeal allowed the appeal of the Croydon Health Authority against the award of damages to the plaintiff, Mrs R, in her action for negligence.

The plaintiff had applied for a job with the health authority in October 1988. She had been required to undergo a medical examination, which had included a chest X-ray. It was common ground that the radiologist who had considered the X-ray had been negligent in that he had failed to report the presence of a significant abnormality, which, had it been reported, would have led to a diagnosis of primary pulmonary hypertension (PPH). That was an untreatable condition of the pulmonary aorta which limited life expectancy, and which was likely to be exacerbated by pregnancy, with a risk of sudden death.

Adrian Whitfield QC and Mary O'Rourke (Capsticks, London SW15) for the health authority; Robin Stewart QC and Elizabeth Gumbel (Field Fisher Waterhouse) for the plaintiff.

Lord Justice Kennedy said that the plaintiff had become pregnant about four months after starting work for the health authority. After going on maternity leave she had become unwell, and PPH had been diagnosed. A healthy girl had been delivered by caesarian section in November 1989. The plaintiff, however, had needed two cardiac catheterisations and a hysterectomy, and had been told that her life expectancy was three to 10 years. She had developed reactive depression and had retired on grounds of ill-health in May 1991. It had since become apparent that the exacerbation of PPH occasioned by the pregnancy had been temporary, and had not decreased the plaintiff's expectation of life, which was now said to be 20 years.

The judge had held that the pregnancy itself was a foreseeable consequence of the failure to diagnose PPH; that pregnancy was likely to have such devastating consequences for a woman suffering from PPH that "it should have been at the forefront of the mind of a competent radiologist"; that if there had been no breach of duty the plaintiff would have been told of the dangers of pregnancy; and that pregnancy and its consequences were, accordingly, the kind of harm from which the health authority should have taken care to protect the plaintiff. He had therefore found that there was no difference in principle between the present case and cases of "unwanted births" arising out of a failed vasectomy or sterilisation.

The judge had concluded that the plaintiff should be awarded damages under the following heads:

a) general damages, to cover pain and suffering and all the complications of pregnancy, hospital visits for heart catheterisations, complications over and above a normal hysterectomy, and continuing reactive depression; b) loss of earnings; c) the expenses of pregnancy; and d) the past and future costs of rearing her daughter to the age of 18.

The health authority had, however, correctly submitted on the appeal that in every case in this country in which damages had been awarded for a "wrongful birth" the child had either not been wanted at all or not wanted in its disabled condition. When the mother had wanted both the pregnancy and the healthy child, there was simply no loss which could give rise to a claim for damages in respect of either the normal expenses and trauma of pregnancy or the costs of bringing up the child.

The award of damages should, accordingly, be restricted to general damages for pain and suffering attributable to the complications of pregnancy due to PPH; any heart catheterisation and complications of the hysterectomy which on a balance of probabilities would have been avoided by a diagnosis in December 1988; and the whole of the reactive depression.

- Kate O'Hanlon, Barrister

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