The Supreme Court of Canada has declined to hear a case regarding whether a doctor owes a duty of care to children before they are conceived.
The case, which has made its way through the courts for the past decade, alleges that a set of triplets in Ontario were born premature and with cerebral palsy after their mother was prescribed a fertility drug. Ontario’s courts held that the triplets’ action amounted to a “wrongful life” claim, which Canadian courts have refused to recognize as a valid cause of action.
Triplets born prematurely after mother prescribed fertility drug
The mother, Dana Geall, was prescribed the fertility drug Serophene at the age of 26 after trying to get pregnant for a short period of time. As a hormone that boosts ovulation, Serophene increases the likelihood of becoming pregnant with multiples. These pregnancies carry a higher risk of premature birth and medical disorders, including cerebral palsy.
Immediately after taking her first round of Serophene, Geall became pregnant with triplets. The babies were born severely prematurely at 26 weeks and were eventually diagnosed with cerebral palsy at two years old.
Children’s cerebral palsy creates lifelong medical obstacles
Cerebral palsy is a group of incurable medical disorders where an injury to the developing brain impairs the central nervous system, affecting a child’s motor control and posture. As described by the Cerebral Palsy Canada Network, “the motor disorders of cerebral palsy can be accompanied by disturbances of sensation, cognition, communication, perception, and/or seizure disorder.”
Dana Geall’s triplets require constant care. Each has faced numerous obstacles and has required various medical treatments, including hip surgeries, brain stimulation, and cochlear implants for hearing impairment. One of the children is unable to speak.
Parents, triplets claim duty of care owed by gynecologist in prescribing medication
In 2011, Dana Geall and the triplets’ father sued Geall’s gynecologist, Dr. Susan Benzaquen, who had prescribed the Serophene. The parents allege that, given the risks associated with multiple births, Geall should not have been prescribed Serophene. They also claim that the gynecologist failed to warn Geall of the risks of multiple births. The doctor has denied the allegations, and the parents’ legal action is still ongoing.
The triplets were later added as plaintiffs, alleging that the doctor knew, or ought to have known, that prescribing Serophene could cause injury to any child upon conception.
Ontario courts strike children’s lawsuit as claim unrecognized by Canadian courts
The triplets’ claim was struck out by the Ontario Superior Court, which found that no action by the doctor caused injury to the triplets because they had not yet been conceived. Further, the Court found that the medication itself was not the cause of the children’s medical issues, which were borne of risks associated with any multiple pregnancy.
Justice Wilson of the Ontario Superior Court held that the triplets’ action was essentially a “wrongful life” claim, which has been rejected as a valid cause of action in Canadian law. The Ontario Court of Appeal agreed. In March of this year, the Supreme Court of Canada declined to consider the case further.
“Wrongful life” historically denied as valid claim under Canadian law
“Wrongful life” claims are those brought by a child (usually born with a disability), alleging that the child would not have been born if not for the negligent act or omissions of the defendant doctor.
Canadian courts have historically refused to recognize “wrongful life” as a valid legal action. In the triplets’ case, the Ontario courts pointed to the example of Bovingdon (Litigation Guardian of) v. Hergott, a 2008 decision of the Ontario Court of Appeal. The mother in Bovingdon was prescribed the fertility drug Clomid by her obstetrician. She subsequently gave birth to twins, who were seriously disabled from being born prematurely. The mother sued the doctor for damages, alleging that he failed to provide her with all the necessary information she required to make an informed decision about whether or not to take Clomid.
The Court of Appeal in Bovingdon held that the doctor had no duty of care to prevent harm to the mother’s future children. He only owed a duty to provide the mother with enough knowledge to make an informed decision about taking the fertility drug. As a result, the Court found that the twins did not have a claim against the doctor.
Courts cite public policy concerns when rejecting duty of care owed to children before conception
In rejecting the concept of wrongful life as a valid cause of action, courts have acknowledged the risks associated with assigning different values to lives affected and unaffected by disability. The words of Justice Stephenson of the English Court of Appeal in McKay v. Essex Area Health Authority have been adopted by Canadian courts to express these concerns:
“To impose such a duty towards the child would, in my opinion, make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving…”
Future children owed same duty as mother: triplets’ lawyer
The lawyer for Dana Geall’s triplets disagrees with the argument that no duty is owed by a doctor to a future child, stating that the triplets, pre-conception, were owed the same care duty of care as their mother. He believes the issue turns on the principle of foreseeability:
“The real issue is, should someone who has been harmed by the negligence of another have the right to claim against that person … regardless of whether they were conceived at the time, assuming they were foreseeable… Of course, in prescribing a fertility medication, there could be no real question that the physician would be able to foresee the potential children. That’s the whole purpose of the medication.”
Whether Dr. Benzaquen acted negligently and failed in her duty of care toward Dana Geall remains to be determined in the ongoing lawsuit, without the triplets’ claim.
Contact Cuming & Gillespie LLP in Calgary for Exceptional Representation in Medical Malpractice Matters
Cuming & Gillespie LLP has over 20 years of experience in medical malpractice claims, including cases involving birth injuries and cerebral palsy. Our compassionate team understands the deep impact these issues have on the life of a child and their family. We are experienced advocates who fight to recover the maximum compensation possible for clients to ease the financial hardship faced by families caring for an injured child. We are conveniently based in the heart of downtown Calgary and proudly represent clients throughout Alberta. To schedule a confidential consultation, call 403-571-0555 or contact us online.