The state’s top appeals court has upheld a decision absolving a Wollongong fertility specialist of blame after one of his patients gave birth to a baby with a rare blood clotting condition, who later went on to suffer a life-altering stroke.
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Debbie and Lawrence Waller gave birth to their son Keeden in Wollongong Hospital in August 2000, at which time they learnt he had inherited the rare condition, known as antithrombin deficiency (ATD), from his father.
Just days later, Keeden suffered a massive stroke that caused severe brain damage and meant he was never able to walk, talk or go to the toilet unaided.
The Wallers launched a $10 million Supreme Court law suit against Wollongong fertility doctor Christopher James, claiming Keeden’s stroke had been the result of inheriting the ATD.
They claimed Dr James had been negligent in failing to warn them of the 50 per cent chance that Keeden would inherit the defective gene.
The Wallers claimed that, had they been properly informed of the risk, they would not have gone ahead with the IVF treatment that resulted in Keeden's birth.
However, Justice John Hislop ruled against the Wallers, finding that they had not proved that the stroke Keeden suffered was actually caused by the blood-clotting condition.
"I find that, properly informed, the plaintiffs would have elected not to have Keeden," Justice Hislop said in a 111-page judgment delivered in May 2013.
"[However] in my opinion the plaintiffs have failed to establish that the CSVT [stroke] was caused or materially contributed to by the ATD.
"The plaintiffs suffered no harm consequent upon Keeden inheriting ATD."
Dr James was, therefore, not liable for the harm Mr and Mrs Waller had suffered as a result of Keeden's disability, Justice Hislop said.
The Wallers took the case to the NSW Court of Appeal hoping to have the judgment overturned.
However, the all-female panel, consisting of Justices Margaret Beazley, Ruth McColl and Julie Ward, upheld the decision.
The court heard Dr James had rightly referred the Wallers to a genetic specialist within the hospital but had failed to adequately explain why the couple should see that doctor.
However, the appeals panel agreed with Justice Hislop's finding that the Wallers failed to substantiate a link between their son's ATD and his stroke.
They also found the chances of him suffering a stroke was so "minuscule" that it could not have been foreseeable, noting that the risk of stroke was present in every pregnancy.
"The catastrophic injuries and disabilities suffered by Keeden shortly after his birth must have been nothing short of a tragedy for him and his parents; such an outcome must be every expectant parent's nightmare," Justice McColl wrote.
"However, ... the loss the [Wallers] suffered by having the legal and moral responsibility of rearing and maintaining Keeden thrust upon them as a result of the successful IVF procedure is not a loss for which [Dr James] is liable."
