In this wrongful birth case, the Australian Capital Territory Court of Appeal decided in favour of the hospital. Although it was found that the Canberra Hospital had breached its duty of care to the child’s parents, the parents failed to establish causation.
Ms Nouri and Mr Shaor (the appellants) sued the Canberra Hospital for losses associated with their baby’s severe birth defects. The child, Saba Nouri, was born on 3 November 2011 suffering from trachea-oesophageal fistula (a TOF) which is an abnormal connection between the oesophagus and the trachea.
The appellants were expecting twins, and argued that had they been told that Twin B may have had a trachealoesophageal fistula (a TOF) earlier, they would have undergone a termination of the fetus.
On 6 September 2011 (gestation 28 weeks and 2 days), there was a discussion about Ms Nouri’s pregnancy at a high-risk meeting at the Fetal Medicine Unit at Canberra hospital. In particular, there was discussion about the increased amniotic fluid together with the possibility of a trachealoesophageal fistula (TOF). Dr Robertson did not discuss the meeting with the Appellants. The twins were delivered on 3 November 2011, and it was later that day that Mr Shaor was told that Twin B had a TOF.
The main issues were when disclosure ought to have taken place, and whether the parents would have and could have obtained termination at that point. In the primary judge’s view, 30 weeks and 4 days gestation was the earliest date when a duty to inform the Appellants of a possible TOF may have arisen. Expert evidence indicated that a termination would have been refused in Australia would have been available in the US.
The primary judge identified a number of different factual obstacles to the success of the Appellants’ case and the Court of Appeal ultimately agreed, saying “It is certainly theoretically possible that a person in Ms Nouri’s position, with an extraordinary degree of determination, effort and organisation, could have achieved the outcome of a selective termination. However, the absence of a firm diagnosis, the lack of encouragement that she would have received from her treating medical specialists, the need to locate and decide to be treated by a suitable practitioner in the United States, the risks of travel to the United States to both herself and the healthy twin, the logistical hurdles that would need to be overcome in getting to and from the United States, the significant expense that would be involved in such an exercise and the shortness of the time available mean that the balance of probabilities is not in favour of her having achieved that outcome,” Paragraph 103.