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Ontario Parents are Suing for Wrongful Pregnancy

Posted in: Blog // Written on behalf of Cuming & Gillespie
June 6, 2019


An Ontario couple are suing Mount Sinai Hospital in Toronto and two obstetricians for $800,000 to cover the costs of raising their daughter claiming that a botched sterilization procedure resulted in a wrongful pregnancy.

WHAT HAPPENED?

In 2011, Jim and Jen, the parents of the baby (who asked that their last name remain private), while pregnant with twins and a thriving five-year-old decided they were satisfied with their family size.  Jen requested to have her tubes tied after giving birth to the twins via C-section.  However, the tubal ligation procedure that she requested never took place and she became pregnant again at the age of 39.

Tubal ligation (often referred to as “having your tubes tied”) is a surgical medical procedure that renders a woman incapable of becoming pregnant.   It occurs when a woman’s fallopian tubes are blocked, tied or cut to prevent eggs from travelling from the ovaries into the fallopian tubes, where the egg is normally fertilized by a sperm.

Jen stated:

The twins were still 10 months old.  I was in the thick of it.  I couldn’t imagine being pregnant again.  I couldn’t imagine having a newborn again.  I didn’t want to be pregnant at all.

The couple considered having an abortion, but was unable to follow through with it.  Jen gave birth to her fourth daughter in February 2013.

The mother explained:

Not that we don’t love her, not that we’re not happy, not that she’s not an important part of our family.  She is everything and more, but it still doesn’t mitigate the fact that there are pragmatic costs to raising a child.

HOSPITAL DENIES ALL ALLEGATIONS

Mount Sinai Hospital conducted an investigation regarding the mishandled situation and found a chain of miscommunication regarding the tubal ligation paperwork.

The wrongful pregnancy lawsuit alleges that the hospital and doctors were negligent in failing to schedule and perform the tubal ligation, failing to realize the tubal ligation was not performed, and that they failed to advise the couple that the scheduled procedure was not performed.

The couple’s lawyer, Tanya Pagliaroli, stated:

At the core of a wrongful pregnancy lawsuit like Jim and Jen’s is the right of a woman, together with her partner, to make reproductive choices. … When, as a result of medical error, that right has been infringed, the parents should be fully compensated for all of the costs that flow from that error.

The hospital has filed a statement of defence and “denies that there was any breach of duty want of care or negligence on its part”.  The two doctors named in the lawsuit also “deny the plaintiffs have suffered any damages”.

It is anticipated that this case will go to trial next spring.

WHAT IS WRONGFUL PREGNANCY?

Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant(s).  Typically, these cases involve a negligently performed sterilization procedure that resulted in the conception of an unexpected child. 

There are those that argue that the victims of a wrongful pregnancy are entitled to recovery of damages for both child-rearing costs and losses associated with the pregnancy.  On the flip side, there is an argument to be made that a healthy child is always an overall benefit to their parents and this benefit cancels out any claim to damages for child-rearing costs.  Many courts have concluded that damages should be limited to those associated with the pregnancy and the initial setup of accommodations for the new baby.

The case law strongly follows the principle that compensatory damages are not designed to punish the negligent physician, but to compensate the plaintiff for loss or injury.  Therefore courts tend to find it inappropriate to assess the cost of raising a health child, born into a family that loves him/her, as a loss or injury.  However, a court may award nominal general damages associated with the stress and pain of an unwanted pregnancy.

Tanya A. Pagliaroli has stated:

There is no difference between a lawsuit that is being brought by Jen and Jim whose rights were infringed by medical error and that of any other victim of medical malpractice who sues because he or she has suffered losses and wants to be fully compensated.

Jim and Jen are hoping that their case will set a legal precedent and will help other families in similar unusual circumstances.

We will continue to follow this lawsuit and will provide details of any developments or updates in this blog.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  We can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation you are entitled to.  With over 20 years of experience, the award winning lawyers at Cuming & Gillespie Lawyers have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation.

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