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

13 May 2013
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'.

SOURCES & REFERENCES
IVF parents lose $10m wrongful birth case, hit with legal costs
The Sydney Morning Herald |  6 May 2013
NSW parents lose claim against IVF doctor
World News Australia |  6 May 2013
Parents of disabled boy lose Supreme Court case against IVF specialist who helped them conceive
The Australian |  6 May 2013
Waller v James [2013] NSWSC 497
Supreme Court of New South Wales |  7 May 2013
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