Medical Malpractice

$13 Million Settlement Approved in Lawsuit Against Fertility Doctor

Written on behalf of Cuming & Gillespie LLP Published on November 10, 2021
medical gloves

An Ontario Court has approved a class-action settlement of $13.375 million to be divided between the members of the class that allege an Ottawa fertility doctor used his own sperm and the sperm of non-approved donors to perform artificial insemination on patients.

The proposed settlement in the lawsuit against Dr. Norman Barwin (“Barwin”), 82 years of age, was approved by Superior Court of Justice Calum MacLeod last week. It is believed that this may be the first approved class action settlement against a doctor under these circumstances. Justice MacLeod remarked in approving the settlement:

“I have no doubt whatsoever that the settlement is in the best interests of each of these classes. The closure is a benefit for families who have endured the shock, trauma and sense of betrayal of discovering that their genetic heritage or that of their children has been misrepresented and altered. By contrast, a continuation of a legal proceeding with an uncertain outcome would have prolonged and exacerbated the family trauma. “ 

The approved settlement also sets out that $75,000 is to be set aside for the creation and operation of a DNA database for those affected by Barwin’s actions. This database will provide the children affected by the decisions made by Barwin with the opportunity to identify their biological fathers, obtain their medical health history and locate their half-siblings.

Barwin agreed to the settlement of the class-action lawsuit, but maintains that the allegations against him are untrue and denies all liability. The settlement will be paid by the Canadian Medical Protective Association, a not-for-profit organization that provides legal defense, liability protection and risk-management education for physicians across Canada.

Barwin gave up his medical licence, which was later revoked by the College of Physicians and Surgeons of Ontario after he pleaded no contest to misconduct allegations and was ordered to pay a fine of $10,730.

The Members Of The Class

Rebecca Dixon, was the lead plaintiff in this class action. Her parents, Daniel and Davina Dixon, are also co-lead plaintiffs in the lawsuit.

The Dixons went to see Barwin at the Broadview Fertility Clinic in 1989 for fertility treatments. Davina Dixon underwent multiple insemination treatments. The couple was assured that Daniel Dixon’s sperm was used for the insemination process on each attempt.

Rebecca became curious in 2016 when she learned that it was highly improbable that a child of two blue-eyed parents (both Daniel and Davina Dixon) would conceive of a child with brown eyes (Rebecca). Her doctor suggested DNA testing or at least testing her blood type. It was revealed that Rebecca’s blood type was O-positive and her father’s blood type was AB. It is virtually impossible for an AB parent to have an O blood type genetic child.

A total of 244 individuals currently make up the class. The class members include Barwin’s former patients who allege that they were artificially inseminated with sperm from the wrong donors. The class members also include the spouses of these patients, the children conceived and the sperm donors whose sperm was used by Barwin without their consent to conceive a child.  

The class includes 17 individuals confirmed to be genetically related to Barwin. It is estimated that there could be 500 successful artificially inseminated births that are directly related to Barwin between the claim period of 1973 and 2012.

Settlement Awards Up To $50k To Class Members

According to the approved settlement, the amount paid to each class member depends upon the category under which each particular member falls. The award is also dependent upon whether more individuals join the legal action. Individuals not currently included in the lawsuit have 120 days to come forward and become a class member.

The maximum payout for each individual is $50,000 reserved for those patients who can prove that the child they conceived with Barwin’s assistance is not their biological child. The first child conceived with the help of Barwin can receive $40,000 and any additional children in the same family are entitled to a further $10,000 each.

Individuals who entrusted their sperm for storage and safekeeping with Barwin but whose sperm was used for the conception of an unrelated patient can receive up to $25,000.

Justice MacLeod noted the difficulty in assessing the “fairness” of the proposed settlement given how unique the case is and the absence of other similar cases.  

Justice MacLeod commented regarding the assessment of damages:

“How can the damages suffered by a child who discovers such a situation be measured?  After all, had there been a different genetic origin that particular child would not have existed, but the child’s entire life has been turned upside down by a discovery which profoundly alters his or her sense of self.  … What is the liability of the defendant to husbands of women who believed their child to be conceived using their own semen or semen from a donor they have selected together?  How can the damages be measured for women who were so profoundly betrayed and whose consent in such an intimate procedure was vitiated?”

Independent Civil Proceedings May Be A Better Choice 

Although it may seem advantageous to join a large class-action lawsuit when you have suffered personal injuries or are entitled to compensation, in some circumstances it may be more beneficial to opt-out of the class and bring an independent legal action.

There are a number of advantages to proceeding with an independent legal claim rather than a class action. One advantage is that it enables the injured party to control their own lawsuit and not be bound by any decisions that are made on behalf of the entire class.  

In a class action, if the defendants are found liable, the payouts are typically spread equally across all injured parties. Unless you have suffered exactly the same injuries and/or financial damages as other members of the class, you may not obtain the full financial advantages of a class-action lawsuit.  

The biggest disadvantage to becoming a member of a class occurs if the class action proceeding is unsuccessful. In this case, individual plaintiffs are prohibited from proceeding with individual lawsuits.  

At Cuming & Gillespie LLP, we can help you identify the personal injury compensation types you are entitled to under the law. If you or a loved one have suffered a serious personal injury, you may be entitled to compensation for the damages you have suffered. Please contact the award-winning lawyers at Cuming & Gillespie LLP either online or by calling 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.