Last week, the Supreme Court handed down a decision in Khan v Meadows  UKSC 21 which re-examined the scope of duty of care in clinical negligence cases.
In 2006, Ms Meadows asked her GP, Dr Khan, to be tested for the haemophilia gene. After undergoing blood tests, she was told by Dr Khan that she was not a carrier of the gene. This was negligent: the tests had only revealed that she did not have haemophilia herself.
In 2010, Ms Meadows became pregnant. Shortly after the birth of her son, Adejuwon, he was diagnosed with haemophilia. It was subsequently confirmed that Ms Meadows was a carrier of the gene. It was admitted by Dr Khan that ‘but for’ his negligence (the basic test for establishing causation in clinical negligence claims), Ms Meadows would have (via appropriate testing) discovered during pregnancy that Adejuwon had haemophilia and he would not have been born.
The law: duty of care
Duty of care is the first ‘limb’ of clinical negligence that must be established to bring a successful claim. The test for duty of care is set out in Caparo Industries PLC v Dickman  UKHL 2:
- The harm must be reasonably foreseeable
- There must be in a relationship of proximity between the parties, and
- It must be fair, just and reasonable to impose liability
Usually, it is not difficult to demonstrate a duty of care in clinical negligence cases because medical professionals have a duty of care to their patients.
In the present case, it was agreed that Dr Khan owed Ms Meadows a duty of care in respect of the 2006 testing and was therefore liable for the costs associated with Adejuwon’s haemophilia.
The dispute that gave rise to the appeal was whether Dr Khan was liable for the costs relating to Adejuwon’s autism, which he has also been diagnosed with. Applying the ‘but for’ test, the High Court allowed all the costs arising from all of Adejuwon’s disabilities (i.e. both haemophilia and autism). The Court of Appeal disagreed and decided that only the costs of Adejuwon’s haemophilia were attributable to the negligence, following the decision in South Australia Asset Management Corpn v York Montague Ltd  AC 191 (“SAAMCO”) (a case concerning negligent property valuation).
Ms Meadows appealed to the Supreme Court.
In the Supreme Court’s judgment, Lord Burrows set out a helpful framework setting out the necessary questions that need to be answered to establish a successful claim for negligence:
- Was there a duty of care owed by the defendant to the claimant? (the duty of care question)
- Was there a breach of the duty of care? (the breach, or standard of care, question)
- Was the damage or loss factually caused by the breach? (the factual causation question)
- Was the damage or loss too remote from the breach of duty? (the remoteness question)
- Was the damage or loss legally caused by the breach of duty? (the legal causation, or intervening cause, question)
- Was the damage or loss within the scope of the duty of care? (the scope of duty question)
- Are there any defences? (the defences question)
This framework makes it clear that there is an additional question to be answered (question 6): was the damage or loss within the scope of the duty of care? The court distinguishes this question from factual causation (i.e. the question of what would have happened ‘but for’ the defendant’s negligence), and makes it clear that there also has to be a causal connection between the negligent advice and the injury complained of.
In this case, it was not enough to argue that ‘but for’ the defendant’s negligence, Adejuwon would not have been born and that as a consequence Dr Khan should be liable for the costs associated with all of his disabilities. Ms Meadows had consulted Dr Khan to establish whether she was a carrier of the haemophilia gene. The Court understood that he had a duty of care to address this specific risk only and it followed that they could only impose liability on Dr Khan for the costs associated with the haemophilia.
In clinical negligence claims, therefore, proving causation on a ‘but for’ basis is not sufficient to impose liability on a defendant. It must be shown that there is a sufficient link between the harm for which damages are sought and the duty of care of the defendant.
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