G and M v Armellin
[2009] ACTCA 6
•1 May 2009
G and M v ARMELLIN
[2009] ACTCA 6 (1 May 2009)
APPEAL – Appeal from order of a single Judge – Appeal on inferences drawn from the facts found by the primary Judge – action for damages – error in the determination of the respondent’s duty of care – Appeal allowed
NEGLIGENCE – negligently caused pregnancy – wrongful birth – in vitro fertilisation – appellant instructed that she did not want a multiple pregnancy – Risk of multiple pregnancy associated with single embryo transfer accepted by the appellant – appellant communicated to respondent that she only wanted one embryo transferred during IVF procedure – instruction not communicated to embryologist – appellant sedated for transfer procedure – embryologist transferred the embryos – two embryos transferred – transfer resulted in multiple pregnancy and birth of twins
NEGLIGENCE – duty of care – appellant was the respondent’s patient – respondent was ultimately responsible for the transfer procedure – respondent owed ‘a duty to exercise reasonable care and skill in the provision of professional advice and treatment’ to the appellant – appellant not advised of default procedure of fertility clinic to transfer two embryos – appellant told she could advise the number of embryos for transfer ‘up to the point of the transfer’ – failure of the respondent to confirm the number of embryos for transfer with fertility centre staff was a breach of his duty of care to the appellant
Harriton v Stephens (2006) 226 CLR 52
Cattanach v Melchior (2003) 215 CLR 1
Elliott v Bickerstaff (1999) 48 NSWLR 214
REASONS FOR JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 16 - 2008
No. SC 796 of 2005
Judges: Higgins CJ, Refshauge and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 1 May 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 16 - 2008
) No. SC 796 of 2005
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:G
First Appellant
M
Second Appellant
AND:SYDNEY ROBERT ARMELLIN
Respondent
Judges: Higgins CJ, Refshauge and Marshall JJ
Date: 1 May 2009
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
At the conclusion of submissions of counsel at the hearing of this appeal, the Court announced that it was unanimously of the view that the appeal should be allowed and so ordered. What follows are the Court’s reasons for allowing the appeal.
The appellants appeal from an order of a single judge of the Court. The primary judge dismissed the appellants’ action for damages based on the judgment of the High Court in Harriton v Stephens (2006) 226 CLR 52 (Harriton), and Cattanach v Melchior (2003) 215 CLR 1 (Cattanach). In Harriton the High Court held that the common law recognises an action by a parent for “wrongful birth” arising out of the negligence of a medical practitioner. Cattanach, by majority, confirmed Harriton.
The appellants did not challenge the law as set out and applied by the primary judge in her clear and comprehensive reasons nor were the facts or credibility of witnesses significantly in dispute. The issues on the appeal related to the inferences that could be drawn from those facts.
The background facts
The appellant G, on 20 July 2004, gave birth to twins following in vitro fertilisation on 12 November 2003. The twins were born as a result of the fertilisation of two separate embryos. The appellants contend that they only wished to have one embryo implanted and that they told the respondent, Dr Armellin, of their wish in what they say was an instruction to him. They say that Dr Armellin was negligent in then supervising the implanting of two embryos into G’s uterus.
The appellants first consulted Dr Armellin on 17 December 2002 seeking help for G to become pregnant. Initially, the appellants sought to have G impregnated by artificial insemination, using donor sperm. After three unsuccessful attempts using artificial insemination, the appellants were enrolled in an in vitro fertilisation program. That program involved the assistance of the Canberra Fertility Centre (“the Centre”).
(a)11 August 2003
At the appellants’ consultation with Dr Armellin on 11 August 2003 the following occurred:
· G told Dr Armellin that she did not want a multiple pregnancy;
· Dr Armellin told the appellants that there was a risk of multiple pregnancy and advised them of the rate of that risk in the event of the transfer of two embryos;
· Dr Armellin told the appellants that the chances of successfully becoming pregnant diminished unless more than one embryo was transferred;
· G told Dr Armellin that she would let him and the Centre know before the embryo transfer whether she wanted one or two embryos transferred. No decision was made at this consultation about that matter;
· G and Dr Armellin discussed the possibility that one embryo could produce more than one child. G accepted that risk but understood it to be a low risk (Expert evidence suggests that risk to be about 0.1%).
· G and Dr Armellin discussed the number of embryos to be transferred but no decision about that was made.
On 12 August 2003, Dr Armellin wrote to the appellants’ referring practitioner about the consultation which occurred on the previous day. The letter said “one or two embryos will be transferred” and then continued:
At this stage [G] is not sure as to how many embryos she wishes to be transferred but she will let us know before an embryo transfer…
This note is consistent with the evidence of G, who said that Dr Armellin told her, concerning the decision to transfer one or two embryos, that “you can tell us up to the point of the transfer”.
It was not suggested to the appellants, in their cross-examination, that they had been told by anyone that they must notify the staff of the Centre the day before the procedure as to how many embryos they wished to be transferred. The evidence is consistent with what Dr Armellin wrote in his note on 12 August 2003. That is, Dr Armellin would be told by the appellants, or at least by G, before the transfer, how many embryos would be transferred.
(b)11 September 2003
The appellants attended at the Centre on 11 September 2003. G completed a form, on this day, concerning the in vitro fertilisation program at the Centre.
G filled in the form and signed a request for in vitro fertilisation or gamete intrafallopian transfer. A nurse at the Centre, called Leanne, told the appellants to insert on the form that “up to two” embryos were to be transferred and to let the Centre know any time up to the procedure as to how many they wanted transferred. The signed form referred to: “Embryo transfer of one to two embryos”.
(c)10 November 2003
On 10 November 2003, G underwent a procedure to harvest eggs produced after the administration of hormone medication designed to stimulate the production of eggs. Six eggs were harvested. Five eggs were successfully fertilised with donor sperm. Before implantation there were only four healthy embryos available for implantation.
(d)11 November 2003
A discussion occurred between G and someone from the Centre about the number of available embryos. G did not tell that person how many embryos she wanted transferred at that time.
(e)12 November 2003
G was admitted to the John James Memorial Hospital, where the Centre was located, on 12 November 2003. The appellants did not tell the Centre, nor were they asked by the Centre, how many embryos they wanted transferred. G decided to have one embryo transferred after she arrived in the theatre at the hospital.
Immediately before the procedure and before G was sedated, she told Dr Armellin that she only wanted one embryo transferred.
This conversation was critical given that G had been told by both Dr Armellin and Leanne of the Centre that she could decide how many embryos to have implanted and communicate that decision anytime up to the transfer and that she had neither decided nor communicated a decision up to that time.
G’s evidence about the conversation was:
And did you have any other discussion with Dr Armellin about the number of eggs that were to be transferred? … Yes
What was that? … He told me that there were four good embryos. I said, “That means one to be transferred”.
Dr Armellin’s account of the conversation was contained in his affidavit in answer to interrogatories administered by the appellants. It was:
I said words to the effect, “I have spoken to the Fertility Centre and I was told they had four good embryos”. I then said to [G], “Are we going to implant two?” she then replied, “No, only one”. I then may have said words to the effect, “there have been occasions when we have put back one embryo and twins have resulted”.
Dr Armellin confirmed this version in his evidence in chief.
Neither G nor Dr Armellin were cross-examined about their evidence on this point.
Although Dr Armellin’s question “Are we going to implant two?” could, from his perspective, be said to be understood as asking what instructions had been given to the Centre, it does not necessarily bear that meaning. Certainly in the context that G had been told both by Dr Armellin and the Centre that she could decide and communicate her decision up to the time of transfer Dr Armellin’s question must have meant to G that she was being asked for her decision, which she could then reasonably expect to be given effect to.
G was then placed under sedation. Prior to the procedure, Dr Armellin completed an operation record which said: “…embryo transfer one embryo under sedation”.
At that time, Dr Armellin believed that one embryo was to be delivered by the embryologist for transfer, but accepts that, in fact, two were transferred.
The embryologist and the Centre had received no decision from G directly and did not know of G’s decision, as told to Dr Armellin, to have one embryo inserted. Dr Armellin believed that the number to be transferred had been organised between the appellants and the Centre. While the embryologist inserted the embryos, Dr Armellin was responsible for the transfer procedure.
The Centre assumed that two embryos would be required in circumstances where:
· The Centre had not been in contact with the appellants and they had not been in contact with it concerning the required number.
· There was no communication between Dr Armellin and the Centre or the embryologist on the required number.
The appellants, and in particular, G, relied on Dr Armellin’s advice, which G recounted in her evidence that “you can tell us up to the point of the transfer”, confirmed in Dr Armellin’s letter of 12 August 2003, where he wrote that “she [G] will let us know before an embryo transfer”. This approach was confirmed by the Centre.
It had been decided as early as 11 September 2003 that the procedure would occur whilst G was under sedation. That is not the usual course. This meant that the opportunity for a last minute check that the required number of embryos was being transferred was more difficult than usual. It was usual for Dr Armellin, the embryologist and the patient to meet and make this check just prior to the implantation. The fact that this was more difficult with G sedated should have alerted Dr Armellin to the need to ensure that he checked with the appellants and the embryologist before the sedation occurred about the number to be transferred or at least checked that the Centre and the appellants knew precisely the actual number to be transferred.
Findings of the primary judge on Dr Armellin’s alleged negligence
The primary judge accepted that Dr Armellin owed a duty of care to the appellants. Her Honour described it as “a duty to exercise reasonable care and skill in the provision of professional advice and treatment”. The standard common law principles of negligence were accepted by the parties and the primary judge as applicable.
At [50] of her reasons for judgment, the primary judge said:
The risk of twin births with the transfer of two embryos and the degree of its occurrence would have been well known to Dr Armellin. Had a reasonable person in his position foreseen that his failure to inform the embryologist of his conversation with [G] prior to the removal of the embryos from the freezer or their insertion would result in the transfer of two embryos, he would have had a responsibility to inform the embryologist.
At [52] her Honour said:
It is important to determine whether Dr Armellin ought to have understood that [G’s] conversation with him constituted instructions and that she had not previously conveyed those instructions to the Fertility Centre staff and, through the staff, to the embryologist who prepared the embryos for transfer.
The primary judge noted at [53] that Dr Armellin relied on what was said to be “the system” in place at the Centre for the provision of in vitro fertilisation. Her Honour described the system at [57]. Importantly, as described by Her Honour, the system placed the responsibility on Centre staff to obtain, from the patient, a decision as to the number of embryos to be transferred. This is done via the form. The system also required the Centre to “usually” talk with the patient the day before the procedure about the number of viable embryos. The patient then gives the number to be transferred, the Centre confirms the number and tells the embryologist. The system, according to the primary judge, then required that the Centre ensure the embryologist provides the number of embryos nominated and confirmed by the patient and that these are delivered.
The primary judge held at [58] that Dr Armellin was entitled to rely on other members of the team within the system to carry out their duties, including providing information and receiving information from the patient. At [63] the primary judge said:
Within the system, the doctor did not control the transmission of [G’s] instructions to the embryologist via Fertility Centre staff.
The primary judge considered that the appellants had not established that Dr Armellin was negligent. For the reasons which follow under the heading “consideration”, we respectfully disagree.
Consideration
Although several health professionals were involved in the preparation for the procedure, ultimately G was Dr Armellin’s patient and he was the professional responsible for the implantation procedure. If there was a firm system in place requiring G to have informed the staff of the Centre the day before the procedure about the number of embryos to be transferred, G should have been told in clear terms about its existence. She was not told that at all. She was told that she could let Dr Armellin know before the transfer about the number of embryos to be transferred, as confirmed in Dr Armellin’s letter of 12 August 2003. If that was not the case, Dr Armellin should not have said so in that letter. If a system was in place, Dr Armellin varied it. Dr Armellin’s counsel conceded on the appeal that “the evidence does not suggest that there was only one avenue of communication. No, there’s no question about that”.
G gave evidence under cross-examination that when she was told on 11 September 2003 that she could let the Centre know about the number of embryos at any time up to the day of the transfer, she understood that the person she should tell would be “Dr Armellin or whoever the key person was at the time of transfer”. This understanding is consistent with Dr Armellin’s letter of 12 August 2003.
Having been told by G that she only required one embryo to be transferred, and in the absence of any knowledge about how many embryos, the embryologist had prepared to be transferred in a procedure for which Dr Armellin was responsible, Dr Armellin should have checked with the embryologist about how many were being transferred before allowing the procedure to go ahead. It was negligent, in the circumstances, for Dr Armellin simply to assume that the embryologist was complying with the wishes of the appellants. That is especially so, given the arrangement about notifying G’s decision as confirmed in the 12 August 2003 letter and the absence of evidence of the appellants ever making a firm choice before the procedure about whether one or two embryos should be transferred.
Counsel for Dr Armellin conceded that it was open for his client, prior to sedating G, to ask the embryologist how many embryos were in the straw, ready to be implanted. Counsel also conceded that the evidence showed that the recipient of the instruction as to the number of embryos to be implanted was either the Centre or Dr Armellin (emphasis supplied). At no stage were the appellants informed that in the absence of communication to the Centre, there would be a default position that two embryos would be implanted.
Counsel for Dr Armellin agreed that the ultimate number to be implanted was up to the appellants and that there was no direct confirmed decision as to the number until the conversation prior to G’s sedation. In those circumstances the Centre could not just guess and Dr Armellin could not just say that it was not his concern when he was in charge of the procedure. Doing so put him in breach of his duty of care to the appellants.
This was, on the evidence, not a case within the principles set out in Elliott v Bickerstaff (1999) 48 NSWLR 214 whereby Dr Armellin could merely rely on the Centre to determine the number of embryos to be implanted. Here Dr Armellin took on a personal responsibility for being a person to receive that instruction and, therefore, for implementing it.
Counsel for Dr Armellin submitted that his client’s duty of care involved doing “all that was reasonable to ensure that the therapeutic outcome that she consulted him for was achieved…in the way she specified”. Counsel conceded that Dr Armellin did not do that (see p 80 of the transcript). Concession or not, the evidence discloses that Dr Armellin did not do all that was reasonable to ensure that the procedure occurred according to G’s wishes. He made an assumption about the number of embryos to be transferred without checking with anyone that the number ready to be transferred conformed with his patient’s wishes. The so-called “system” was nothing more than a practice usually adhered to. It was a practice departed from in this case as G reasonably believed, based on Dr Armellin’s advice and that of the Centre, that she could tell him right up to the point immediately before the procedure as to how many embryos would be transferred. Dr Armellin did not ensure that what he promised in August 2003 actually occurred in November 2003.
For the foregoing reasons we were unanimously of the view on 12 February 2009 after hearing the submissions of counsel, that the appeal should be allowed and ordered accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 1 May 2009
Counsel for the Appellants: Mr RL Crowe SC with Mr D Mossop
Solicitor for the Appellants: Pamela Coward Higgins Lawyers
Counsel for the Respondent: Mr T Bartley SC with Ms L Whalan
Solicitor for the Respondent: Ken Cush & Associates
Date of hearing and orders: 12 February 2009
Date of Reasons for Judgment: 1 May 2009
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