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HEALTH CARE PROFESSIONALS - Liability - Negligence - Duty of care

Friday, August 27, 2021 @ 5:27 AM  


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Appeal by the plaintiffs from a decision striking out the statement of claim as not disclosing a cause of action. The appellants were prematurely born triplets. Their mother was prescribed a fertility drug by the respondent physician. At the time, she was 25 and had been attempting to conceive for only a few weeks. Because of having been born prematurely, the appellants had serious disabilities. The appellants alleged that their mother was not advised of the significant risk of conceiving multiple fetuses and of the associated risks. They further alleged that the respondent’s prescription of the drug was contraindicated and failed to consider the mother’s age, the very short time that she and her husband had been trying to conceive, and other clinical indicators which suggested that the use of the drug was unreasonable in the circumstances. The appellants argued the respondent owed a concurrent duty of care to their mother and to them to not prescribe to their mother a contraindicated and potentially dangerous medication that the respondent knew, or ought to have known, could cause harm not only to the mother but also to them. The motion judge concluded that the appellants’ claims were not recognized at law and that no duty of care to the appellants, as unconceived babies, should be recognized. She stated that this court had rejected wrongful life claims and the lower courts were bound by that jurisprudence.

HELD: Appeal dismissed. The motion judge correctly applied the Anns analysis and determined that it was plain and obvious the appellants’ claims could not succeed. The motion judge did not mischaracterize the appellants’ claims as predicated on informed consent and correctly identified the appellants’ additional allegation as the prescription of the fertility drug to the mother contraindicated given her situation. This additional allegation, however, did not change the analysis necessary to determine if a duty of care was owed to the unconceived children. The duty of care the respondent owed to her patient, the mother, could not be conflated with the respondent’s obligation to meet the standard of care that she owed to the mother. The additional allegation was relevant to whether the respondent breached the standard of care. It was not relevant to whether she owed the mother a duty of care and whether the respondent owed the appellants, as unconceived babies, a duty of care. The motion judge did not err in concluding their claims were not viable in law based on the Bovingdon and Paxton cases. These cases were factually similar to the appellants’ case. The Anns analysis conducted by the motion judge in this case showed that, based on this court’s jurisprudence, the claims by unconceived babies against physicians for alleged negligence that occurred pre-conception would necessarily result in a determination that the claims were not viable in law. While the reasonable foreseeability requirement would normally be met, the policy considerations at both the first and second stages of the Anns analysis militated against finding such a duty of care. In Ontario, it was settled law that a physician did not owe a duty of care to a future child for alleged negligence that occurred pre-conception.

Florence v. Benzaquen, [2021] O.J. No. 3971, Ontario Court of Appeal   J.M. Fairburn A.C.J.O., J.C. MacPherson and E.E. Gillese JJ.A., July 22, 2021. Digest No. TLD-August232021009