Recent case sparks debate: should physicians owe duty of care to children before conception?

This article was produced in partnership with Neinstein Personal Injury Lawyers

Can – and should – Canadian physicians owe a duty of care to future children? If you ask the lawyers at Neinstein Personal Injury Lawyers the answer is an emphatic yes – but the question was at the centre of a recent case, Florence v. Benzaquen, where the courts were not as certain.

Duncan Embury, head of the Medical Malpractice Group at Neinstein, and Daniela Pacheco, partner and senior medical malpractice lawyer at the firm, recently represented the Florence Triplets. They alleged that gynecologist Dr. Susan Benzaquen improperly prescribed the fertility drug Serophene to Dana, the mother of the triplets. Serophene increases the chances of carrying multiple fetuses, which in turn increases the chances of premature birth and serious health-related complications. The claim alleged that Dr. Benzaquen should never have prescribed Serophene to Dana, as it was contra-indicated for someone like her. Danabecame pregnant soon after starting the prescription and gave birth to triplets Brody, Cole and Taylor at 26 weeks’ gestation. All three have serious disabilities.

“Our collective position is always that the most vulnerable in our society deserve our most focused and deliberate attention and advocacy,” says Pacheco. “They are quite literally the people who have nobody else to fight for them.”

Pacheco and Embury argued the prescription was contraindicated given Dana’s age, the short time she’d been trying to conceive and other clinical indicators. The respondent, Dr. Benzaquen, filed a motion to strike the claim under the Rules of Civil Procedure and the motion judge determined “in this case there was no injury to the fetus arising from a negligent act because conception had yet to take place.” Therefore no duty of care to the Florence Triplets s, as unconceived babies, should be recognized, the judge ruled.

Though the Ontario Court of Appeal upheld the decision of the motion judge and the appeal was dismissed, Justice J. Michal Fairburn wrote a significant dissent to the majority opinion. Fairburn opined that existing jurisprudence ­ ­– specifically Bovingdon v. Hergott, Paxton v. Ramji and Liebig v. Guelph General Hospital – “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.”

For Pacheco and Embury, the dissent is noteworthy because it underscores the fact that this issue requires further consideration – especially when previous Court of Appeal decisions in similar cases had no dissenting opinions at all. The Florence Triplets applied for leave to appeal to the Supreme Court of Canada, outlining the issue as one of clear public importance given that an increasing number of Canadians are being born through the use of assisted reproductive technologies and contextualizing the question: should Canadian courts categorically dismiss the novel claims of persons who suffer injuries from medical negligence occurring before their conception?

The application went on to argue “… the categorical exclusion of persons injured due to the negligent provision of such medical care will leave an ever-growing number of injured persons without a remedy, without autonomy, and without protection, contrary to Canada’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.”

Canada is a recent signatory to the UN’s convention, yet “our law and our approach to these children conflicts with our evolving understanding of disability related rights,” Pacheco says, adding even though the mother’s claim gets to go ahead, any amount awarded for the care needs of such injured persons comes with no legal requirement that parents use any such funds to assist their children – which is a “real failure to protect disabled persons.”

“By ignoring these children, we’re really ignoring their autonomy, their ability to have their own money and control their own lives.”

The application also argued that the Florence Triplets’ claim is novel and distinguishable from previous cases. This was critical, Pacheco notes, because one of the possible reasons the SCC hasn’t wanted to deal with the question in previous cases is the theoretical potential conflict between a doctor’s established duty of care to a mother, and any potential duty of care that may be applied to a future child.  . Although the law has dealt with similar potential conflicts in situations where conception has already occurred, and the child has been born alive,  by requiring a physician to have a dual duty of care to both mother and fetus, with the duty to the mother taking precedence, the court still grapples with it, Pacheco says. Historically, it’s likely courts were worried about preserving women’s rights to make choices about their own bodies, “but in a labour and delivery context a physician still has to think about two patients, and has a duty to both so long as the child is born alive, so it’s disingenuous to say we don’t have a way around it.”

Neinstein was hopeful their application would succeed where others had failed because the facts of the case were such that there was no potential for that theoretical conflict to arise. Other cases dealing with this issue came up in informed consent contexts, but in this case the  argument was the triplets’ mother never should have been offered the drug at all. Her choice could never conflict with the interests of the child, or the to-be conceived child, because she never had to make a choice; her knowledge of and consent to the risks and benefits of the drug would never have been an issue because the doctor never should have offered it. But the SCC refused to hear the case, rejecting leave to opine on the question of a duty of care to as of yet unconceived for the third time.

“Not all cases come with good facts, even if they have a good legal principle, but in this specific situation, the facts are fantastic,” Pacheco says. “That made us think the court might have a bigger appetite. But it wasn’t tempting enough – and if not in this case where there was no potential conflict, then I don’t know when. It’s clear that the Supreme Court doesn’t want to deal with this issue.”

Neinstein feels strongly that there’s something fundamentally unfair and unjust about leaving a group of Canadians with no recourse unless their parent wants to launch a claim: these children should have their own legal rights, Pacheco notes. And if the common law isn’t going to evolve, then the legislature must. She points to the United Kingdom, where the issue has been legislated and where a Court has recently interpreted the legislation to find a duty in such circumstances, as the way forward in Canada. Advocating to representatives of government for systemic change where a duty of care is created by statute is the only option, she says.

“We have a duty as lawyers who represent these children to take it to this next level. Our responsibility is broader than taking the easy route and the easy cases. We do whatever we can to improve the lives of vulnerable Canadians – win, lose or draw.”

Daniela is a Partner and a Senior Lawyer in the Medical Malpractice Group of Neinstein Personal Injury Lawyers. She has experience in all areas of plaintiff side medical malpractice and traumatic injury litigation. She has appeared as counsel in complex multi-party medical malpractice trials and appeals, and has appeared before the Superior Court of Justice and Court of Appeal for Ontario as an advocate for her clients.

Daniela served as chair of the Medical Malpractice Section of OTLA in 2020, and is a regular contributor for their Medical Malpractice Newsletter. Additionally, she recently served as Public Relations Liaison within the Executive at the Women Lawyer's Forum of the OBA. Daniela served as Chair of the Women's Caucus for two consecutive years and was awarded an OTLA Women's Caucus Award in 2017.