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This is our blog.  It contains most posts Julian makes at his own blog http://www.westaustralianmedicalnegligence.com, along with posts relating to the firm specifically: If Julian can convince them to do so, it will also include blogs by other staff!

IVF triplets and Melchior claim – emotion aside

I note with interest the recent article in the Australian, confirming a wrongful birth claim for the parents of triplets in Queensland, alleging a breach of contract by their IVF provider, by which they had agreed that no more than 2 embryos would be implanted, yet instead 3 embryos were used.

If the emotional rhetoric is put to one side, there is really nothing controversial about this claim. We would handle such 'wrongful birth' cases, most commonly arising from (negligently caused) failed sterilisation or failure to identify fetal developmental abnormalities during pregnancy, on at least an annual basis.

A key point ignored by the article and debate is that had there been no negligence in the couple's care, yet they still had triplets, no claim could be brought. The High Court rejected arguments about sanctity of life in such cases, a decade or more ago.

Pursuit of claim does not mean the parents are monsters or do not love their 3rd child: it just means they have received negligent care and as a consequence, will incur significant extra costs, related to the 3rd child's raising, which the negligent service should contribute towards. I for one believe this is perfectly appropriate and fair.

 

Key New Medical Negligence Case Decisions – no good news for plaintiffs!

After what I have felt has been a slow start to year, in terms of important medical negligence case law, 2 important decisions in 2 days…

On Monday, as reported, the NSW Supreme Court delivered the long awaited (it seems 15 months from trial to decision) decision in Waller v James, the equally unfortunate, as it transpires, case spin-off from Harriton v Stephens, the wrongful life case in which the High Court held no damages could be recovered by the child who would not have been born (because his parents would have terminated the pregnancy), had there not been negligence in the antenatal advice.  In Waller, Justice Hislop dismissed the allegations of negligence against IVF doctor Dr James.  He made a number of important findings relevant to the assessment of damages in such cases, on topics prior to this point undecided (particularly, whether compensation should be paid for ‘normal’ parental services provided to the child).  I will post a more detailed summary of this case shortly.  It will be interesting to see whether the case is appealed.  The stakes seem high enough to make this likely.

Then today, the High Court delivered a unanimous decision,dismissing the appeal in Wallace v Kam, the NSW case I have written about previously, concerning an action for failure to warn of significant risks of complication.  Once again, I will write a summary of such case, when the reasons of the Court are published.  In the meantime, by the Court’s published case summary, their decision hinged on their conclusion that:

“Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.”

Of course the converse argument, not accepted by the Court, was that Mr Wallace suffered a serious complication from an operation he would not have agreed to undergo, had Dr Kam properly warned him of the risks of it.  It will be interesting to see how the Court reached its conclusion.