Wrongful birth is a legal cause of action in which parents claim that their doctor failed to properly warn of congenital, or other abnormalities that would have led them to choose to abort the pregnancy.
 The matter of Harriton v Stephens was heard in the High Court of Australia in 2006. Ms Harriton was 25 year old woman who was born with a severe congenital disability caused by her mother’s infection with the rubella virus. The mother’s treating doctor advised her that she did not have the virus.
Ms Harriton claimed that had her mother been correctly advised that she had the rubella virus the pregnancy would have been terminated. As a result of the pregnancy not being terminated Ms Harriton continues to suffer damage in the form of increased care costs, as well as continued pain and suffering.
This case posed an interesting question on causation as it invited a comparison of Ms Harriton’s current disability with the circumstances had she not been born, and therefore not existed.
The High Court held that a comparison that involves non-existence is impossible to accept, for the reason that it could not logically prove damage. In essence a person cannot complain that they should not have existed.
 In contrast the matter of Cattanach v Melchoir was a matter where wrongful birth was upheld.
Mrs Melchoir had attended her gynaecologist to have her fallopian tubes removed as she could not financially afford to have a third child, and wanted to remove the risk of further pregnancy.
Following the operation she fell pregnant with her third child. There was no doubt that failing to correctly complete the sterilisation procedure was a breach of duty of care. The question before the High Court was whether there was a causal link between this breach of duty, and any damage sustained by Mrs Melchoir.
The solicitors for the Defendant argued that the parents could not be said to have suffered harm, or damage as a result of the joy that the child would bring them.
The solicitors for the parents argued that the mother suffered pain in the birthing process, and now incurred schooling, hospital, and other expenses she would not have had to but for the failed sterilisation procedure.
The High Court found in favour of Mrs Melchoir, and damages were awarded for the cost of the child’s upbringing.
Conclusion
Medical negligence cases require a more specialised and forensic approach then most of other general negligence cases, due to the complex nature of medicine and the ever-changing health industry.
Stacks Goudkamp has a specialised medical negligence team who are experience in preparing medical negligence cases, to ensure that you obtain the best outcome for your claim.
If you or someone you know has been involved in a case of medical negligence you may be entitled to compensation. For more information and to arrange a free consultation please contact Stacks Goudkamp on (02) 4058 2715 or alternatively make an online enquiry.
