A couple has lost its bid to sue Canberra Hospital for $9 million for not properly informing the expectant parents about their baby's severe defects.
In November 2011, the baby — a twin — was born with abnormalities of the spine, heart, throat, kidneys, oesophagus, anus and limbs.
The Canberra parents argued in the ACT Supreme Court on Friday that doctors should have given them information during the pregnancy that would have led to the decision to terminate the baby, and consequently avoid the hardship and expenses of raising the child.
Documents tendered to the court show the pregnancy was unplanned and the parents did not want a child with a disability.
When the couple learned they were having twins, they were prepared to terminate the birth of both "if necessary", the court heard.
The parents claimed they were only told about some of the baby's problems during an ultrasound at 20 weeks and 5 days, and if they had known more they would have chosen an abortion.
But Justice Michael Elkaim had difficulty determining the extent of the parent's knowledge.
"This is a credit issue and is dependent on whether I accept the evidence of the plaintiffs or that of the defendant, given through its various witnesses," his judgement read.
The court heard that even if all of the information on the potential defects was given at 21 weeks into the pregnancy, the earliest they were known, it was not certain whether an abortion could have taken place at this stage.
In the judgement, Justice Elkaim said that was the factor the breach of duty depended on.
Generally in Australia, any termination in a public hospital after 20 weeks' gestation needs the permission of an ethics committee.
However, the couple told the court they would have sought that permission or have travelled elsewhere, such as to the USA.
Justice Elkaim said he had no doubt the parents are convinced they would have found a way to achieve a termination "now living with a severely disabled child and having had their lives and livelihoods severely affected".
"What is unknown is if counselling, which they say they should have had, would have had an effect on them or if the risks and logistics of travel to America would have either been beyond them, or been viewed as risks they were not prepared to take," his judgement read.
"All of the doctors agreed that [the mother] faced substantial risks in travelling to America."
The defence argued there was no breach of duty, and if there was, that breach did not cause the loss claimed.
But the couple had argued they should receive damage costs of caring for the child and economic loss suffered now and into the future, through their child's entire 31-year life expectancy.
They claimed $9 million in total.
While Justice Elkaim found the hospital did in fact breach its duty of care, he said the couple failed to prove the damages they sought were a result of the negligence.
Justice Elkaim ruled in the favour of Canberra Hospital and ordered the couple to pay the hospital's legal costs.
