Debbie Waller with her disabled son Keeden. Photo: Quentin JonesThe parents of a severely disabled boy have lost a $10 million case against an IVF specialist who failed to properly warn them of the likelihood their son would inherit a blood-clotting condition, but are considering appealing against the decision.
The couple face the prospect of having to pay the doctor’s legal costs, which could run to tens of thousands of dollars.
Days after Debbie Waller gave birth to Keeden in August 2000, the infant suffered a stroke that caused severe brain damage and meant he was never able to walk, talk or go to the toilet unaided.
Mrs Waller and husband Lawrence claimed the stroke was the result of a rare blood-clotting condition known as antithrombin deficiency [ATD], which Keeden inherited from his father.
They sued the IVF specialist who oversaw his conception – Christopher James – in the NSW Supreme Court for what is known as ”wrongful birth”. The couple were not properly made aware there was a 50 per cent chance Keeden would have the defective gene and said that had they been properly informed of the risk, they would not have had the IVF treatment that resulted in his birth.
They sought compensation in the order of $10 million for the lifelong care of their handicapped son.
On Monday – 15 months after the case was heard – Justice John Hislop found Dr James had failed to ensure the Wallers were properly informed about the risks of inheriting ATD, and that had they been so informed, they would not have given birth to Keeden.
But he said the Wallers had not proved Keeden’s stroke had actually been caused by the blood-clotting condition. He accepted the evidence of a medical expert called by the defendant that Keeden’s antithrombin condition ”at most was a minor contributing factor and was possibly irrelevant to the outcome”.
”In my opinion the plaintiffs have failed to establish that the CSVT [stroke] was caused or materially contributed to by the ATD,” Justice Hislop said.
The Wallers were ordered to pay Dr James’ legal costs. Given that the hearing ran for four weeks, these costs are likely to run to thousands of dollars.
The couple’s lawyer, Bill Madden of Slater & Gordon, said his clients were ”upset and disappointed” and were considering an appeal.
”They want an opportunity to read through the judgment and its conclusions before making a final decision.” He said it was up to Dr James’ insurer, Avant, to decide whether it would seek to have the legal costs order enforced.
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