GP Dr K faces a claim after a misunderstanding over the intention of some blood tests. By Alison Clarke, Claims Manager, Medical Protection.
In August 2006, the patient consulted her GP, Dr A, with a view to establishing whether she was the carrier of the haemophilia gene. The patient had been alerted to the possibility that she was a carrier when earlier that year her nephew was diagnosed with haemophilia. The patient wished to avoid having a child with that condition.
The blood tests that were arranged by Dr A were to establish whether the patient had haemophilia and not whether she was a carrier of the haemophilia gene. To establish whether she was a carrier of the gene, she would need to have been referred to a haematologist for genetic testing.
Two weeks later the patient returned to the practice to obtain and discuss the results of the blood tests. On this occasion she saw another GP at the practice, Dr K, who told her that the results were normal. As a result of the advice she received, she was led to believe that she was not a carrier of the haemophilia gene. She was not advised that the blood test could only determine whether she had haemophilia and not whether she was a carrier of the gene.
In December 2010, the patient became pregnant with her son, A. Shortly after his birth he was diagnosed as having haemophilia. The patient was then referred for genetic testing, which revealed that she was a carrier of the gene for haemophilia.
It was the patient’s view that had the GPs referred her for genetic testing in 2006, she would have known she was the carrier of the haemophilia gene before she became pregnant. In those circumstances she would have undergone foetal testing when she became pregnant in 2010. That testing would have revealed her son was affected by haemophilia and if so informed, she would have chosen to terminate the pregnancy.
A’s haemophilia was severe. He was unresponsive to conventional factor VII replacement therapy. In December 2015 he was diagnosed as also suffering from autism. This is an unrelated condition, although has made the management of his haemophilia more complicated.
How Medical Protection assisted
In August 2014, Dr K received a letter of claim from solicitors acting on behalf of the patient, alleging that Dr A had failed to adequately investigate the patient’s concern about a family history of haemophilia and had failed to refer the patient to a haematologist to establish whether she was a carrier for the haemophilia gene. It was alleged that Dr K had failed to adequately advise in relation to the blood test results, which provided false reassurance that the patient was not a carrier of the haemophilia gene.
Dr K contacted Medical Protection on receipt of the letter of claim and a legal team was put in place to assist and support. Proceedings were discontinued against Dr A and proceeded against Dr K alone.
Although the allegations of breach of duty were initially defended on behalf of Dr K, following the receipt of independent GP expert opinion, it was conceded that Dr K ought to have reviewed the earlier GP entries and advised that the blood tests that had been performed were not the correct ones to establish whether she was a carrier of the haemophilia gene. So it was accepted that the costs associated with the patient’s son’s haemophilia were to be compensated. However, when it was subsequently also alleged that Dr K was responsible for the costs associated with the patient’s son’s autism, this was denied, and the matter went to trial on the question of whether Dr K was liable for the costs of bringing up the disabled child who has both conditions, or only for those costs associated with the hereditary disease.
Outcome
At first, the judge found for the claimant. In holding Dr K liable for the costs associated with both A’s haemophilia and autism, the judge observed that as a matter of “but for” causation A would not have been born but for Dr K’s negligence. She recognised that if the claimant had another pregnancy it would carry the same risk of autism but held that on the balance of probabilities the subsequent pregnancy would not have been affected by autism. The autism arose out of this pregnancy that would have been terminated but for Dr K’s negligence.
This judgment was appealed on behalf of Dr K where it was argued, as it had been at first instance, that the focus of the consultation, advice and appropriate testing (had it been carried out) was directed to the issue of whether the claimant was the carrier of the haemophilia gene and not the wider issue of whether she should become pregnant. The scope of duty of care test should be applied.
In short, Dr K was not liable for the costs associated with A’s autism because that type of loss was not within the scope of the risks she had undertaken to protect the claimant against and therefore was not within the scope of her duty of care. The purpose of the consultation was to put the claimant in a position to make an informed decision in relation to a child she conceived who was discovered to carry the haemophilia gene. Dr K was not advising on all the risks of pregnancy but just in relation to haemophilia. This argument found favour with the appeal court and the original judgment was successfully appealed.
The claimant then appealed that decision, which was unanimously dismissed. The court held that the additional losses attributable to autism were irrecoverable on the grounds that they were outside the limited scope of Dr K’s duty of care, which concerned only the risks of haemophilia.
This resulted in the claimant getting substantially less than what was originally claimed, while in addition Dr K was awarded costs.
Learning points
This was an important decision because for the first time it made clear that the scope of duty of care test laid down in the case of Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd; South Australia Asset Management Corpn v York Montague Ltd applies to medical practitioners providing advice, whereas it was more commonly associated with claims for negligent financial advice.
Scope of duty depends not on foreseeability but on the nature of the service the practitioner has undertaken to provide to the patient or client. In this case Dr K’s duty was limited to advising in relation to a particular risk (haemophilia); the foreseeable but unrelated risk of autism fell outside that scope of duty.
NZ commentary
There are a number of aspects to consider. Firstly, the HDC – if the patient made it clear to Dr A that she wanted to know if she was a carrier, and Dr A failed to arrange appropriate testing or referral for that, then this is likely to be regarded as not meeting the expected standard. Because the consequences were significant, this could result in a breach finding, but would be unlikely to go further. The second issue is whether this might result in a civil case against either or both doctors.
Generally speaking, a case is unlikely to proceed if the scenario is covered by ACC. However, based on cases in NZ with a similar theme, ACC would be likely to decline a claim lodged on behalf of the child. If so, this leaves open the possibility of a claim through the courts, which is something almost never seen in NZ. For a civil claim to succeed the bar is “gross negligence” and it is impossible to predict whether the courts would make this determination. What is more certain is that the ACC decision could well be appealed as far as the Supreme Court, and a civil claim likewise as this would be precedent-setting in NZ.