Wrongful Birth: What Compensation is Available?

The laws that cover wrongful birth and unplanned pregnancy may be controversial but are here to stay, writes TGB’s Mal Byrne.

Wrongful birth cases are controversial.  Many people don’t accept that compensation should be available for wrongful births.  There are two polarised moral positions.  The first is that babies are a blessing and that people should not be seeking compensation for their blessings regardless of the circumstances surrounding the pregnancy.  The second and opposing position is that we live in an age of contraception where couples plan pregnancies, and expect that sterilisation procedures and contraception will be performed properly and that where negligence occurs and an unplanned pregnancy results, compensation should be paid even if the couple proceeds with the pregnancy.  In short, people treat contraception like any other product they purchase.  They expect to get what they paid for and to be recompensed where the service provided has been less than adequate.  The consumer mentality is now cemented into contraception, fertility and pregnancy.  Some may object, but it is here to stay.

In order to be eligible for compensation where an unplanned pregnancy has occurred, you will need to prove that it occurred due to the negligence of a health professional and/or the manufacturers/distributors of the contraceptive method used.  Oral contraceptives and various intrauterine devices have recognised failure rates.  If you happen to be one of the unlucky people in that small percentage of recognised failure rates you cannot claim compensation.  Most couples who have successfully sued for wrongful birth have done so in the circumstance where a procedure or device has failed such as an intrauterine device or a sterilisation procedure such as tubal ligation or vasectomy.  Once again, there are recognised failure rates with these procedures and you will need to establish that the procedure failed because of some negligence in perhaps the way that a device was inserted or the procedure was performed at first instance.  As with most medical negligence cases, an expert opinion will probably have to be obtained.

However, if you can establish negligence, what compensation is available?   The law has changed dramatically since 2004.  The catalyst for change was the High Court decision of Cattanach and Melchior.  Mr and Mrs Melchior already had two children and did not want any more.  Mrs Melchior asked Dr Cattanach to perform a sterilisation procedure.  Mrs Melchior told Dr Cattanach that her right ovary and fallopian tube had been removed during an operation when she was 15.  When Dr Cattanach performed the sterilisation procedure, he did not see any right ovary or fallopian tube and only attached a sterilisation clip to the left fallopian tube.  Four years later Mrs Melchior became pregnant and gave birth to a healthy baby boy.  Subsequent investigations revealed that Mrs Melchior’s right fallopian tube had not been removed as she thought.  Dr Cattanach did not see the right fallopian tube when he performed the sterilisation procedure as it was obscured by bowel adhesions.  When she was pregnant, Mrs Melchior was working part time and had to give up that employment.  The High Court found that Dr Cattanach was negligent not because he missed the presence of the right fallopian tube when he performed the sterilisation procedure, but that he accepted Mrs Melchior’s assertions on face value, did not order any testing to confirm that what she was saying was correct and because he should have warned her that without further testing, she could become pregnant if she was wrong on the status of her reproductive system.  Mrs Melchior was awarded just over $200,000 in damages broken down as follows:

1. $103,672.00 for pain and suffering, loss of amenities of life, loss of part time employment earnings, loss of opportunity to take up further employment due to her thrombosis that occurred during the pregnancy and additional medical costs;

2. $3,000 for Mr Melchior for loss of consortium (companionship) as a result of his wife’s pregnancy and childbirth;

3. $105,329 for the costs of raising the child from birth through to age 18.

Governments around Australia were in the process of reforming the law on negligence and wrongful multiple birth cases were in their sights.  In South Australia, the new law is Section 67 of the Civil Liability Act which specified that no damages would be payable in wrongful birth cases for the ordinary costs of raising a child.  The philosophy behind the change was that compensation should be available for the short term life changes caused by the pregnancy, but that the long term consequences and in particular the costs of raising the child should not be compensable.

Hence, the compensation available for a wrongful birth is now limited to the following:

1. The pain and suffering for the pregnancy itself;

2. Loss of earnings arising from the pregnancy, particularly in women who are in employment at the time of conception;

3. The husband or domestic partner of the claimant will have a claim for loss of consortium (companionship).

The law attempts to strike a balance so that consumers of medical services can expect compensation if doctors fail to adhere to a minimum standard of care, but the compensation available is limited to the term of the pregnancy and that if you choose to proceed, you accept full responsibility for the cost of care of the child that results.  Whether the balance struck is right will be a debate that has some way to go yet.

TGB is South Australia’s largest plaintiff law firm. For advice about a wrongful birth claim contact your nearest TGB office.