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Jul 03

The ‘DVD Player’ Kid

People are up in arms over the recent High Court decision which ruled in favour of a mother who gave birth to a son after a botched hysterectomy. The Court held that the sterilising obstetrician was negligent and that he had to pay for the costs of raising the child until he was 18. The ramifications are obvious – the risks to doctors performing hysterectomies or vasectomies may far outweigh the benefits for doing them at all. This is on top of the crisis over medical indemnity that occurred last year when UMP collapsed.

It is a strange situation. No doubt the doctor was negligent. However, the situation with compensation is unlike that of negligence which causes, for example, injury. Something like that has no benefits. By association, many would see that compensation for having children would be akin to comparing children to maladies, which would be clearly offensive to most. Nonetheless, an unplanned child can reduce quality of life for the parents (that is not to devalue the life of children, but a comment on the circumstances of the parents) – look at unwanted teenage pregnancies. However, even children born at untimely moments may have “benefits”… it’s not all bad. The problem is, how do you determine what the true cost of having unwanted children is? This is the issue that the three dissenting judges strongly raised.

This case ultimately is the result of the increasingly litigious nature of society (that’s becoming a catchphrase now isn’t it?). It seems like everyday, Australia is becoming more and more similar to America.

But Mrs Melchior – who refused to talk to the Herald because, her lawyer’s spokeswoman said, she had an agreement with the Seven Network – told Today Tonight that if she had not wanted Jordan, she “would have terminated the pregnancy”.

She had sued because “I’m sick and tired of people getting away with murder … I’m tired of the underdog being mistreated … we’re Aussies, we’ve got to stand up and be counted for.” (SMH)

“Getting away with murder.” Yes, a nice choice of words by Mrs Melchior.

Acting PM John Anderson has attacked the High Court’s decision, but it is parliament that can do something about it. They should introduce legislation to give doctors more protection. Why should a profession already fraught with stress and high emotional strain have to cope with the additional and ever-increasing burden of having to worry about litigation?

[Heydon J:] The sum awarded for child-rearing expenses which is in controversy in this appeal is approximately equivalent to that which might be recovered for a moderately severe personal injury having long term detriments, like a badly broken leg, or for the destruction of a very expensive uninsured car in a motor accident, or for serious damage to a dwelling caused by a negligently driven runaway truck, or for some substantial interruption to the profitability of a business. Each of these events is in some way, if not a catastrophe, at least a calamity for the victim. Many judges and other lawyers across the common law world have opposed recovery of a sum for child-rearing expenses because they have an instinctive revulsion against seeing the birth of a healthy child as comparable in any way with a badly broken leg, the destruction of a very expensive car, serious damage to a building, or some substantial injury to a business. Others, like Ognall J, point out that “those who are afflicted with a handicapped child or who long desperately to have a child at all and are denied that good fortune would regard an award for this sort of contingency with a measure of astonishment”. Yet others, like Weir, see it as “a grotesque waste of public funds” that “hospitals, strapped for funds for curing the sick”, should be “paying out loads of money in respect of perfectly healthy children and adolescents … to parents who were in no way obliged to spend it on them”. But it has been one thing to reach a conclusion after experiencing revulsion or feeling astonishment or observing a grotesque result. It has been another thing to formulate legal reasoning to support the conclusion reached. [emphasis added] (Cattanach v Melchior)

It should be the leadership of our politicians doing something about stemming the tide of medical litigation. The legislative system can be proactive, whereas the judicial system is reactive and arguably constrained by legal reasoning.