In a previous article, we discussed a decision in which the motion judge dismissed a “wrongful life” claim. A wrongful life claim is a claim asserted by a child for a pregnancy that results in birth defects, where the child argues that, but for the negligence of the doctor, the child would not have been born.
A mother was prescribed a fertility drug and prematurely gave birth to triplets who have serious disabilities. The mother, father, and children sued the doctor who prescribed the fertility drug. They pled that if the mother had been aware of the significant risks associated with multiple births, she would not have taken the fertility drug.
The claim was dismissed under rule 21 of the Rules of Civil Procedure (determination of a question of law raised by a pleading).
The Court of Appeal recently affirmed the dismissal of the action in Florence v. Benzaquen, 2021 ONCA 523. A majority of the Court of Appeal held 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”.
Justice Fairburn, dissenting, said that prior case law has not settled this issue conclusively. She indicated that the door has been left open, even if just a crack, to the possibility of a physician owing a duty of care to a future child where the alleged negligence takes place prior to conception.
Justice Fairburn stated that the case in issue may be distinguishable from a previous case because the fertility drug prescribed to the mother was contraindicated. She indicated that whether a drug is contraindicated may be relevant to the existence of a duty of care and, more specifically, to the question of proximity.
Justice Fairburn would have permitted the claim to continue. She said “…that the matter needs to be explored with the benefit of a full record at trial, including expert evidence to amplify upon the concept of ‘contraindication'”.