Unsuccessful appeal on wrongful birth claim - despite hospital’s breach of duty

16 March 2020

The parents of a severely disabled twin were unsuccessful on appeal in establishing that if they had been informed of her condition in time, they would have been able to terminate the pregnancy and not incurred the substantial costs associated with her care.

In Issue

Saba Nouri was born on 3 November 2011 with severe disabilities, known as VACTERL association. Her disabilities included trachea-oesophageal fistula (an abnormal connection between the oesophagus and trachea), cardiac defects, renal abnormalities, and limb defects. As a consequence of Saba’s disabilities, she requires ongoing 24 hour care. Her non-identical twin was not born with any of the conditions that Saba suffered.

Saba’s parents, Ms Nouri and Mr Shaor, made a claim for medical negligence against Canberra Hospital. The plaintiffs contended at trial that there was a failure by the hospital to disclose relevant information about Saba’s condition. They alleged that if they had been provided with the information about Saba’s condition, they would have terminated the pregnancy, and the extensive costs associated with her care and upbringing would have been avoided. The defendant argued that it did not breach its duty of care. It argued that if there was a breach it did not cause the loss claimed.

The decision at trial

The trial judge determined that the defendant was not liable for the loss and damage claimed by the plaintiffs. The court found that the defendant had breached its duty of care to inform the plaintiffs about Saba’s possible disabilities so that the parents could make an informed decision about terminating the pregnancy. The defendant’s duty arose when it possessed enough reliable information to allow it to arrive at those conclusions.

However, the plaintiffs failed to prove causation. When the duty arose, Ms Nouri was 30 weeks and 4 days into her pregnancy. The plaintiffs could not establish that they could have obtained a termination at that late stage of the pregnancy. The court considered how the Australian law and ethics committees would have dealt with a termination. The court also considered it unlikely that Ms Nouri would have been able to travel to the USA to undergo a termination.

The court notionally assessed damages (in case the plaintiffs were successful in proving liability) at $1,813,807. The court found that the plaintiffs were not entitled to damages after Saba turned 18 years old, despite any moral obligation they may feel to care for her beyond that age, because there is a legal obligation on the NDIS to support her. The trial judge also determined that general damages were not claimable, because the plaintiffs had not suffered any psychiatric disorder amounting to nervous shock.

The issues on appeal

On appeal, the appellants (Ms Nouri and Mr Shaor) challenged both the liability findings as well as damages. The appellants contended that:

  1. The date they should have been informed that Saba suffered tracheal oesophageal fistula should have been earlier than the date determined by the trial judge, which would have prompted earlier consideration of a termination of the pregnancy;
  2. The trial judge erred in finding that they would not have been able to arrange a termination of the pregnancy prior to Saba’s birth;
  3. The trial judge erred in failing to award general damages and economic loss beyond Saba’s 18th birthday.

The Decision on appeal

The appeal was dismissed with the respondent’s costs to be paid by the appellants.

The Court of Appeal found that the appellants could not establish, on the balance of probabilities, that they would have terminated the pregnancy if “proper advice” had been given and they had been notified of the possible existence of Saba’s conditions earlier.

As to whether Ms Nouri would have been able to arrange a termination of the pregnancy in Australia or in the USA, the Court of Appeal agreed with the trial judge and held that it was unlikely that a doctor in Australia would have performed a selective termination of the affected twin, because any Australian doctor would have required a definitive diagnosis to do so (which was not possible prenatally). Further, the Court of Appeal determined that it was unlikely Ms Nouri would have been able to travel to the USA and find a specialist to perform the termination. It was necessary to consider medical evidence from both Australia and the USA, and evidence (from travel agents, financial records and visa documents) about the logistics of travelling to the USA while heavily pregnant.

Ms Nouri could not prove, on the balance of probabilities, that she would have terminated her pregnancy regardless of the breach of duty of the respondent.

The Court of Appeal declined to deal with damages on the basis that it would be inappropriate to deal with the NDIS issue where liability was not established.

Implications for you

This case demonstrates that proving causation is a rigorous requirement. The Court of Appeal thought it would have been theoretically possible for a person in Ms Nouri’s position to obtain a termination – but doing so would have required an extraordinary degree of determination and overcoming numerous logistical hurdles. The case highlights the importance of lay witnesses and practical evidence when assessing the strength of your case.

Nouri v Australian Capital Territory [2020] ACTCA 1

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