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Australian IVF doctor not liable for failing to warn about the risk of a hereditary condition

13 May 2013

By Cait McDonagh

Appeared in BioNews 704

The parents of a child born with a rare blood clotting disorder have lost their legal battle against an IVF doctor for wrongful birth after he failed to warn them of the risks of passing on the hereditary condition.

Keeden Waller was born in Australia in 2000 with antithrombin deficiency (ATD) inherited from his father, a condition that affects the body's normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.

Keeden was conceived by IVF using the Waller's own gametes. Although there was no genetic test for ATD at the time, the Wallers claimed that their IVF doctor was negligent in not ensuring they knew of the risk of their child inheriting ATD. They argued that, if they had been warned, they would not have used Mr Waller's sperm. There was a 50 percent chance of Keeden inheriting ATD.

The Supreme Court of New South Wales, Australia, found that IVF specialist Dr Christopher James had breached his duty of care to ensure that his patients were aware of the risk of passing on ATD to their child. However, after hearing from a medical expert that the condition was 'at most was a minor contributing factor and was possibly irrelevant to the outcome', the court ruled that the Wallers could not prove that Keeden's ATD had caused the stroke.

Justice Hislop said: 'In my opinion the plaintiffs have failed to establish that the CSVT, Cerebral Sinovenous Thrombosis, [stroke] was caused or materially contributed to by the ATD'.

The judge accepted that the Wallers would not have gone ahead with the IVF procedure if they had known of the risks to their child, but added 'however, the harm for which recovery is sought, namely the consequences of (the stroke) was not reasonably foreseeable'.

The Wallers' lawyer, Bill Madden of law firm Slater and Gordon, said that his clients were considering an appeal but that 'they want an opportunity to read through the judgment and its conclusions before making a final decision'.

The Sydney Morning Herald | 06 May 2013
World News Australia | 06 May 2013
The Australian | 06 May 2013
Supreme Court of New South Wales | 07 May 2013


25 April 2016 - by Antony Blackburn-Starza 
A UK court has struck out a claim brought against a hospital for failing to diagnose a genetic disorder when testing the claimants' second cousin three years previously...
30 November 2015 - by Antony Blackburn-Starza 
A woman is suing a fertility clinic in Australia for failing to detect that she was a carrier of a genetic mutation during pre-pregnancy testing, after her sons were later born with an inherited condition....
06 October 2014 - by Chee Hoe Low 
A woman is suing a sperm bank in Ohio, USA, after she became pregnant with sperm from the wrong donor...

06 February 2012 - by Ayesha Jadoon 
An IVF doctor in Australia who was involved in the conception of a child affected by a genetic disorder is being sued for 'wrongful birth'....
31 October 2011 - by Dr Lux Fatimathas 
Increasing numbers of Israeli children with birth defects are suing medical professionals for failing to detect abnormalities and allowing them to be born, says the New Scientist. The magazine reports that such is the Israeli Government's concern over the rise in 'wrongful life' lawsuits it has launched an investigation into the validity of the claims....
27 July 2008 - by MacKenna Roberts 
An Australian couple lost a high-profile medical negligence case against their specialist fertility consultant at the Canberra Fertility Clinic last week. The couple had alleged that Dr Sydney Armellin negligently transferred two embryos rather than one as specifically requested when they received IVF treatment in 2003, thereby...
01 October 2007 - by MacKenna Roberts 
Last week, following public outrage over the legal concept that a healthy baby might amount to 'damage', the Australian Medical Association (AMA) president, Dr Andrew Foote, condemned the recent unprecedented case before the Australian Capital Territory (ACT) Supreme Court. In it, two women are suing their doctor...

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