Dr Khan v MNX – Court of Appeal

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A study on the scope of the doctor’s duty of care and losses flowing from a breach of that duty.

An unusual case. FGN, the son of MNX, and aged 6 years by the time this matter was heard by the Court of Appeal towards the end of 2018, was born with haemophilia and autism. The claim arose on the back of MNX asserting that properly advised that she was carrying a child that would be born with haemophilia, she would have aborted the pregnancy and avoided the costs of caring for a child suffering both haemophilia and autism.

Damages were assessed by the court of first instance in the sum of £9 million. Dr Khan appealed, seeking a ruling that whilst the claimant was entitled to be compensated for the costs associated with the birth of child with haemophilia, she was not entitled, as a matter of law, to the additional costs associated with caring for a child with autism. The agreed difference in the value of the claims was the £9 million awarded, and lower sum of £1.4 million which was the sum agreed between the parties as attributable to losses if Dr Khan was only liable for the costs associated with haemophilia.

The court studied the available case law in depth, and for those interested in more detail the judgement bears reading in full.

The purpose of the consultation between MNX and Dr Khan was to establish whether MNX was a carrier of the haemophilia gene. There was a failure to refer MNX for appropriate genetic testing, and a separate failure to provide her with accurate advice, namely that she was a carrier of that gene. The focus of the consultation, advice and appropriate testing was directed at the haemophilia issue and not the wider issue of whether, generally, the respondent should become pregnant and the coincidental risks of pregnancy.

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