Doctor fails to explain genetic risks to IVF couple

Mr & Mrs Waller conceived their son, Keeden, through IVF treatment.  That treatment had been co-ordinated by a gynaecologist, Dr James (who had a subspecialty in infertility and IVF).

Keeden was born with an anti-thrombin deficiency (ATD) which he had genetically inherited from his father,  Four days after his birth Keeden suffered a stroke which left him permanently and profoundly disabled.  Both parents became full time carers for Keeden, such are his needs.

The Wallers had been referred to Dr James by their GP.  The existence of Mr Waller’s ATD condition was made known.

Dr James agreed it was his obligation to refer the couple to a genetic counsellor to obtain information so they could form a view as to whether there were concerns with the possible consequences of Mr Waller’s condition being passed on.  Dr James did, in fact, give a post-it note with the details of the genetic counsellor on there.  The Wallers gave evidence that they tried to call but did not get through.  They did not pursue it any further.  Dr James did not make a note of his referral and never followed up with the Wallers as to whether they thad down anything further about it.  The IVF treatment then proceeded.

The Wallers argued that Dr James had breached the duty of care he owed to them by failing to inform them of the hereditary aspects of ATD.  They contended that had they known that they would have deferred undergoing the IVF treatment until they could be assured there were methods to ensure only embryos not effected by the gene mutation would not be transferred to their child.  They claimed to have had their right to plan their family infringed.

The Wallers claimed compensation for the cost of Keeden’s future care. They also claimed losses arising from the psychological injuries they had suffered in consequence of what had transpired.

The case went before the Supreme Court:  the Wallers lost.  They then appealed to the Court of Appeal.

The court was not prepared to find that Dr James had been negligent for giving a referral by way of post-it note.  But he was found to have breached the duty he owed the family by failing to properly explain the reasons for the referral.

Ultimately though, the Wallers still lost their case.  The Court of Appeal concluded that the doctor’s failure to properly explain the reason for the referral did not cause Keeden’s stroke and that the risk of such harm arising was too remote to be foreseeable.  The development of the stroke, it was said, was coincidental for legal purposes to the inheritance of the ATO.

For more details read the full version of the court judgment:

Waller v James [2015] NSWCA 232

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