Dangerous precedent for medical profession

WHEN judges hand out damages for the birth of a child, it is a sign that society is in trouble. It suggests that some of us have become so self-obsessed that we have forgotten that the arrival of a new human being is a cause for celebration, not litigation. Many parents - and would-be parents - will be angered by this decision. But it is really a cause for pity.

What sort of mother runs off to court because she has two children instead of one? And what sort of court believes it has the capacity to restore the supposed injury caused by the arrival of a child?

Lawyers and doctors should be very worried by this ruling. It suggests that the law of negligence is in deep trouble - at least in the ACT Court of Appeal. For reasons that have not been made public, the territory's top court has taken the law of negligence and stretched it to breaking point. The Court of Appeal has overturned a compelling decision by Justice Annabel Bennett, who is also a well-regarded judge of the Federal Court. Bennett had refused to give one dollar to the greedy women at the heart of this case. Bennett based her decision on a close analysis of the facts. She found that the obstetrician in question, Sydney Robert Armellin, had conducted himself reasonably. He had no breached his duty of care.

The mother in question, Ms G, received two embryos instead of one because of flawed communication in the system used by her fertility clinic. But Armellin, in Bennett's view, was not at fault. Here's why: Ms G had changed her mind about the number of embryos she wanted implanted. And she did so in the operating theatre after earlier signing documents agreeing to have ``one to two'' embryos implanted.

When Ms G told Armellin she wanted one embryo, the doctor believed this information was not new. He thought it had previously been conveyed to the clinicians who had prepared the implant. The doctor believed Ms G would have conveyed this information during the clinic's pre-surgery procedures. In fact, Ms G had failed to take part in those procedures. It is a great pity that the Court of Appeal has not yet explained why it believes Bennett and Armellin were wrong. When it does, it had better be good.

Unless the court has extremely compelling reasons, it looks as though the real victim here is the obstetrician. If this decision stands, the ACT has a choice: change the law or accept the fact that this branch of medicine will rarely be practised in the nation's capital.


Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. For a daily survey of Australian politics, see AUSTRALIAN POLITICS Also, don't forget your daily roundup of pro-environment but anti-Greenie news and commentary at GREENIE WATCH . Email me (John Ray) here

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