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Duncan Embury, partner at Neinstein LLP

Court split on duty of care owed by doctors to children ‘for alleged negligence’ pre-conception

Wednesday, July 28, 2021 @ 9:18 AM | By Amanda Jerome


The Ontario Court of Appeal was split on whether doctors owe a duty of care to future children for “alleged negligence that occurred pre-conception.” Counsel involved in the case noted that Justice J. Michal Fairburn’s “strong dissent” is significant as “more and more children are born of assisted reproductive technologies.”

Justice Eileen Gillese, writing for the majority, determined that in Ontario, “it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception.”

In Florence v. Benzaquen, 2021 ONCA 523, the court heard that Dana Florence, the appellants’ mother, started taking a fertility drug known as Serophene in July 2007.

According to court documents, Florence was “25 years old and had been attempting to conceive for only a few weeks.” By the end of the month she was pregnant and subsequently gave birth at 26 weeks’ gestation.

Florence had triplets named Brody, Cole and Taylor, and since they were born prematurely, the triplets have “serious disabilities,” the court noted.

Florence, her husband, and the triplets (the appellants in this decision), launched an action in 2011 claiming negligence against Dr. Susan Benzaquen, the respondent, who had prescribed the Serophene as Florence’s gynecologist.

According to the claim, Florence was “not given all the information necessary to make an informed decision about the use of Serophene.” The appellants alleged that Florence was “not advised of the significant risk of conceiving multiple fetuses, the associated risks which include premature birth of the babies, and the resulting potential for significant neurological and developmental injuries to them.”

The appellants also alleges that Benzaquen’s prescription of Serophene was “contraindicated and failed to take into account Ms. Florence’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 Serophene was unreasonable in the circumstances.”

“Below and on appeal,” the court noted, the appellants argued that “their case is not predicated on the issue of their mother’s informed consent.”

“Rather, they assert that 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” and that the respondent “knew, or ought to have known, could cause harm not only to Ms. Florence but also to them.”

According to court documents, Benzaquen brought a motion under r. 21.01(1)(b) of the Rules of Civil Procedure to strike the appellants’ claims before trial.

The motion judge, Justice Darla Wilson of the Superior Court of Justice, determined that the appellants’ claims were “not recognized at law” and therefore had no viable cause of action. Justice Wilson granted Benzaquen’s motion, striking the appellants’ claims.

The court noted that Justice Wilson had “described a claim for wrongful life as one asserted by the child for a pregnancy that results in birth defects and where the child argues that, but for the negligence of the doctor, the child would not have been born.”

Her reasons reviewed relevant case law, including three decisions from Ontario: Bovingdon (Litigation Guardian of) v. Hergott 2008 ONCA 2; Paxton v. Ramji 2008 ONCA 697; and, Liebig v. Guelph General Hospital 2010 ONCA 450.

Justice Wilson noted that the “allegations of negligence against the Respondent all relate to her care and treatment of Ms. Florence — there was ‘no pleading of a duty owed to the triplets by the [Respondent] in any capacity.’ ”

The motion judge stressed that “in this case there was no injury to the fetus arising from a negligent act because conception had yet to take place.” She concluded that “no duty of care to the Appellants, as unconceived babies, should be recognized.”

Justice Wilson determined that the Court of Appeal had “ ‘closed’ the door on cases arising from the prescription of fertility drugs that result in premature births.”

On appeal, the appellants argued that that case was “factually different from those decided to date in Ontario and the novel duty of care they assert has wide implications of public importance.” The appellants wanted the “opportunity to present a full factual and evidentiary record at trial before the court decides whether their claims should be recognized at law.”

The appellants submitted that Justice Wilson erred by “failing to apply the ‘limited-form’ Anns test to the facts of this case; her application of Bovington and Paxton; and characterizing their claims as ones for wrongful life and categorically denying them.”

Justice Gillese, with Justice James MacPherson in agreement, determined to dismiss the appeal in a decision released July 22.

She wrote that Justice Wilson correctly decided the motion when she noted that “striking claims with no reasonable prospect of success is a ‘valuable housekeeping measure essential to effective and fair litigation.’ ”

Justice Gillese went on to review the Court of Appeal’s decisions in Bovingdon, Paxton and Liebig.

In Bovingdon, she noted the court had found “a co-extensive duty of care to a future child would create a potential conflict of interest for the doctor, given the doctor’s duty to the mother.”

In Paxton, she highlighted the court’s finding that “the prospect of conflicting duties if the doctor were found to owe a duty of care to the future child as well as the mother” could have “an undesirable chilling effect on doctors.”

Liebig, Justice Gillese noted, affirmed the previous decisions. She stressed that the concluding sentence was “particularly significant to this appeal,” as it explained “Both Bovingdon and Paxton hold that there is no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to conception.”

Justice Gillese did not accept the appellants’ submissions on appeal, noting that Justice Wilson had “conducted a meaningful Anns analysis.”

She explained that “doctors would be placed in a conflict of interest position if they owed a duty of care to their patient and to that patient’s future, unconceived children.”

“While there might be situations in which no such conflict arises in respect of a particular medication or treatment, that does not derogate from the validity of the general policy concern that doctors would be placed in an unworkable position due to the inherent conflict of interest that would arise if they were found to owe a duty of care both to their patient and that patient’s future children. The motion judge made no error in concluding that such a concurrent duty of care would place the doctor in an impossible position,” she added.

Justice Gillese also emphasized that Justice Wilson’s view was that she was obliged to follow the jurisprudence set by the higher court.

“She struck the Appellants’ claims not because she labelled them wrongful life claims but because, after conducting the Anns analysis, she found it was plain and obvious those claims are not viable in law,” she added.

Justice Fairburn, in a detailed dissent, wrote that to her, the determinative question on appeal should be: “Is it settled law, in Ontario, that there are no circumstances in which a physician could owe a duty of care to a future child for alleged negligence that occurred pre-conception?”

She noted that her review of the case law finds that “the existing jurisprudence leaves open the possibility that there could be circumstances in which a physician would owe a duty of care to a future child for alleged negligence that occurred pre-conception.”

“In my view, the difference between a drug being ‘indicated’ and a drug being ‘contraindicated’ could have a serious impact on determining whether a physician owes a duty of care to a future child. That is why there needs to be a trial where the issues of ‘contraindication’ can be explored with the assistance of expert evidence,” Justice Fairburn explained.

Justice Fairburn concluded that she did not “read Bovingdon, Paxton, and Liebig as settling conclusively that there could never be any circumstances in which a physician owes a duty of care to a future child where the alleged negligence takes place prior to conception.”

“As I have explained, I read those decisions as explicitly leaving the door open — even if just a crack — to the possibility that such a duty could exist,” she added, noting that she would allow the appeal and order the matter proceed to trial.

 Duncan Embury, Neinstein LLP

Duncan Embury, Neinstein LLP

Duncan Embury, a partner at Neinstein LLP and counsel for the appellants with Daniela Pacheco, noted negligence claims such as this one have been litigated a few times over the years both in Ontario and across the country.

“The cases in Ontario, before this one, effectively … said that no such claim could be made,” he explained, adding that “a lot of people, including the majority at the Court of Appeal, believe that shut the door on any such claim, once and for all time, for any child injured in those circumstances in Ontario.”

However, Embury believes there may be “situations in which that needs to be revisited.”

“I think that’s what’s highlighted in the dissenting reasons of Justice Fairburn and it’s an issue I think requires further consideration,” he added, noting lawyers should be considering “whether or not such claims are really barred once and for all time or whether there are circumstances where they should be brought forward.”

 Daniela Pacheco, Neinstein LLP

Daniela Pacheco, Neinstein LLP

Pacheco agreed with Embury and noted that previous decisions on this issue had no dissent.

“I think it’s really notable that there’s a very strong dissent that is asking courts to be a little more careful before they block out what could be considered new or novel claims. Specifically in the area of fertility as an example, we’ve been looking at research on this issue, [and] more and more children are born of assisted reproductive technologies and I think it’s important to recognize, before we as a society determine that a certain group of people don’t have a claim, just who we’re talking about and who that’s going to affect,” she added.

Pacheco believes the dissent in this decision will encourage people “to take a bit of risk in really analyzing past case law and not taking anything for granted.”

“I think Fairburn’s insights are really important,” she added, noting “we do have to be careful that previous case law shouldn’t just blanket our views for the future.”

“What we’re talking about here in this specific area of law is the right of disabled children,” stressed Embury, “and we feel very strongly that, as a group of people, the fact that there is a body of case law that suggests that they don’t have the same tort rights, or potential tort rights, as any other citizen in this country is something that needs to be very, very carefully reviewed because at the end of the day they’re a very vulnerable group and all measures should be taken to consider whether their rights can be pursued.”

Counsel for the respondent did not respond to request for comment.

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