The Constitutional Court in H v Fetal Assessment Centre 2014 JDR 2720 (CC) set the framework within which the High Court is to consider the recognition of a child’s claim against a medical practitioner who misdiagnosed a congenital disability or some serious medical condition pre-natally, resulting in the child being born with a disability.  Such a claim has until now not been recognised in our law and is more commonly referred to as a “wrongful life” claim.

The applicant is a boy born with Down Syndrome in 2008.  His mother instituted a claim on his behalf in the High Court for damages against the Respondent for their alleged wrongful and negligent failure to warn her of the high risk that the child may be born with Down Syndrome.  It is alleged that, had the mother been advised, she would have chosen to terminate the pregnancy.  The child’s claim is for special damages for past and future medical expenses, as well as for general damages for disability and loss of amenities of life.

The child’s claim was couched on the basis of a duty of care and a breach of said duty owed to the child’s mother in her representative capacity as mother and natural guardian of the child.  The Defendant brought an Exception to the Particulars of Claim on the basis the claim is bad in law in that it did not disclose a cause of action recognised by our law.  The High Court, seemingly in relying on the decision of the Supreme Court of Appeal in the matter of Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA), upheld the Exception and dismissed the Plaintiff’s claim with costs.  The child consequently appealed to the Constitutional Court against this judgement.

Even though our law recognises a parental claim for patrimonial damages (actual costs and expenses) suffered by the parents following the misdiagnosis of a congenital disability pre-natally in circumstances where the parents would have chosen to terminate the pregnancy, a similar claim is not recognised for the child after being born with the disability.  In the Stewart matter, the SCA described the core question to be answered when determining the viability of the child’s claim as whether it would have been preferable from the child’s perspective to not have been born at all, a question which it held goes so deeply to the heart of what it means to be human that it should not be asked of our law.  The SCA held further that for such a claim to succeed, the court would be required to evaluate the existence of the child against his or her non-existence.  Consequently, the SCA held that the child’s claim cannot be recognised by our law.

The Constitutional Court in its judgement is critical of the Stewart decision, inter alia, for not taking the values and rights enshrined in our Constitution, including the right of children to have their best interests considered of paramount importance in every matter concerning them, into account when considering the viability of the child’s claim. Section 39(2) of the Constitution requires that our courts must, when developing the common law, promote the “spirit, purport and objects of the Bill of Rights”.  Thus, our common law must conform to the values and rights enshrined in our Constitution and the Bill of Rights. 

The Constitutional Court was further critical of the term “wrongful life” as being inaccurate in that the legal issue to be determined is not the wrongful life of the child, but rather whether he or she should be allowed by our law to claim compensation for a life with disability.

The Constitutional Court defined its purpose with regard to its assessment of the case not to determine finally whether the child has a claim, but to decide whether our common law may possibly be developed to recognise it.  In this assessment, the Constitutional Court examined the potential for recognition of the child’s claims against the elements of a delict.  It found that, by using the principles of the “but for” test, factual causation can be established.  It left a determination on legal causation, and thus whether the wrongdoing is sufficiently closely linked to the loss for legal liability to ensue, for determination by the trial court after all the facts have been led in evidence. 

The Constitutional Court further held that negligence would have to be proved by the applicant in accordance with the general principles of our law and applied to the specific facts of the case.  With regard to the element of damages, the Constitutional Court opined that a child’s claim for patrimonial damages is conceivable.  However, a determination with regard to a claim for intangible losses (pain and suffering, and loss of amenities of life) was left to the High Court to consider.

The Constitutional Court’s approach to the elements of “harm causing conduct” and wrongfulness is of interest.  With regard to the requirement of harm causing conduct, the Constitutional Court stated that the paradox is that the medical condition or congenital disability was not caused by the practitioner’s negligence.  However, if the negligent conduct in the form of the misdiagnosis had not occurred and the mother was told of the risk of disability, there would never have been a birth, and consequently a disabled child and the addition financial burden it entails.

As mentioned, our law recognises the parents’ claim for patrimonial loss in the form of an unwanted financial burden in these instances on the basis that it deprived the parents of an informed choice to terminate the pregnancy.  Unlike the parents, the child suffers no constitutionally protected loss of personal choice. 

In terms of the legal position as it currently stands, the financial loss will befall the child instead of the medical practitioner should the parents fail to institute action.  As such, the Constitutional Court opined that the misdiagnosis could arguably cause harm to the child in the sense of a burden on the child in circumstances where the parents fail to pursue their own claim, i.e. the harm causing event. 

The Constitutional Court was further of the view that recognising the child’s claim for patrimonial damages will not result in a claim in excess of the medical practitioner’s liability to the parents on the basis that the two claims are seen as a single claim and not cumulative.  The Constitutional Court thus opined that it is conceivable that a court may, after all the facts are known at the trial, conclude that the practitioner is liable to the child for the same loss he would have been liable for apropos the parents. 

The question of wrongfulness (whether society requires that liability be imposed on a wrongdoer) is determined by public policy, which is to be found in the values enshrined in our Constitution.  Part of the wrongfulness inquiry is to determine whether a breach of a legal duty not to harm the claimant has taken place, or determine whether there has been a breach of a claimant’s rights / interests. 

In terms of the Constitution, children have the right to have their best interests given paramount importance to in every matter concerning them.  Should the parents not pursue a claim against the medical practitioner in respect of the child’s disability, it will result in the loss lying with the child in terms of our current legal position.  This outcome is conceivably not in the best interests of the child.  As such, the Constitutional Court opined that there may be a legal duty not to cause this loss to the child, a breach of which will infringe the child’s rights in terms of section 28(2) of the Constitution.

The court felt that there could be no argument that recognising this claim will result in a claim against the parents by the child for choosing not to abort in circumstances where the parents were aware of the disability as the child would have to show that the mother was wrongful and negligent in her choice not to abort.  The Constitutional Court opined that this might prove difficult when regard is had to the mother’s right to a free and informed choice regarding reproduction and her body.

The Constitutional Court was thus of the view that wrongfulness as element of a delict could conceivably be found with regard to the viability of the child’s claim.

The Constitutional Court opined that the Exception procedure was an inappropriate process on which to determine the viability of the child’s claim.  It referred to prior case law wherein it was held that, where the factual situation is complex and the legal position uncertain, the interests of justice will not be served unless all facts on which the determination is to be made are led in evidence.  The court further held that the issue at hand, namely the development of the common law of delict to allow a child’s claim of this nature, is too complex to be determined on Exception and, as such, requires that all the facts be lead in evidence.

The Constitutional Court held that a child’s claim may potentially be found to exist, however, left it up to the High Court to determine finally whether it in fact does and in what form.  It however, cautioned that the decision must accord with the Constitutional rights and values, which include that the best interests of the child be of paramount importance in all matters concerning him or her.

The Constitutional Court commented that, even if the High Court reaches the conclusion that the limits of our law of delict will be stretched beyond recognition in order to acknowledge the child’s claim, our Constitution gives our courts the liberty to develop motivated exceptions to the common law rules or recognise new remedies for infringement of rights.

Although the Constitutional Court does not make a final determination in respect of the viability of the child’s claim, one gains the impression from reading the judgement that the court leans towards recognising the child’s claim.  It continuously refers to the Constitution requiring that a child’s best interests be of paramount importance.  It further emphasises that the High Court is the upper guardian of children, which obliges our courts to act in the best interest of children in all matters involving them.  The Constitutional Court confirmed that said powers to determine what those interests are, are extremely wide. 

Impact of recognition of child’s claim on medical malpractice in South Africa

As pointed out by the Constitutional Court, should the High Court, after hearing all the evidence, recognise the child’s claim against the medical practitioner who negligently misdiagnosed the cognitive disability pre-natally in circumstances where the mother would have terminated the pregnancy, the practitioner will not be held liable to the child in excess of his liability to the parents insofar as patrimonial damages are concerned.  However, should the High Court also acknowledge the child’s claim for non-patrimonial damages (pain and suffering, loss of amenities of life, etc.), the claim against the medical practitioner by the child will exceed his liability to the parents.  The degree to which the child is aware of his or her situation will play a role in the determination of the quantum of certain heads of the non-patrimonial damages.

A further implication of the recognition of the child’s claim pertains to prescription.  Whereas the prescription period in respect of the parents’ claim is three years, prescription in respect of the child’s claim will occur much later when regard is had to the Prescription Act 68 of 19.  Prescription insofar as the child’s claim is concerned will depend on the degree and type of the disability, however, on the basis that the child is a minor, without taking the disability into account, the claim will only become prescribed one year after the child reaches the age of majority (18 years).  It is thus conceivable that, upon recognition of the child’s claim by the High Court, actions may be instituted against medical practitioners in respect of matters where the parents’ claim has long since become prescribed but not that of the child.   

As a consequence, medical malpractice and particularly insurance in respect thereof, will be placed under even further strain should the High Court recognise the child’s claim against the medical practitioner responsible for the misdiagnosis.

Written by   Annelize Hefer (LLB, Certificate in Medical Law), Director, Markram Incorporated Attorneys