Ontario’s Non-Existent Duty of Care to Children Injured Preconception

NOTE: The views expressed in this essay are those of the author only.

In Ontario, medical professionals treating pregnant patients do not owe a duty of care toward their patients’ preconception, unborn children. The effect is that children injured as a result of doctors’ negligence prior to their conception are not eligible for compensation to defray the costs of their ongoing or future care, nor are medical professionals held accountable for such errors.

As shall be explored below, the policy justification for this approach, cited and consistently affirmed by the Ontario Court of Appeal (“Court”) is the potential for conflicts of interest arising between a doctor’s duties towards the patient-parent and any potential duty towards an as yet to be conceived, future unborn child. However, as per Justice Fairburn’s meticulous dissent in Florence v Benzaquen, 2021 ONCA 523, this policy justification is not well-supported, because the leading case law can easily be construed more liberally, as in fact providing an opportunity for the imposition of a duty of care to preconceived, future unborn children. An approach could be developed which addresses the concerns over conflicts, while still allowing children injured preconception to recover damages. Given the interests of vulnerable children at stake, it is hoped that this opportunity will eventually be availed upon sooner rather than later.

A View of the Existing Case Law

The Backdrop of Ontario Law – 2008

The current line of cases addressing the issue of a potential duty of care owed towards preconception unborn children for medical negligence was first explored in Bovingdon (Litigation Guardian of) v Hergott.[1] In this case, the defendant-doctor prescribed the fertility drug Clomid to the plaintiff-mother without adequately informing her of “the extent of the increased risk of having twins by taking the drug, the potential for premature birth when carrying twins, and the consequent injury this might cause to them.”[2]

The plaintiff-mother’s use of Clomid ultimately became “the first link in a chain of causation that led to the conception of the [plaintiff-] twins, [their] premature birth … and the damage caused to them as a result of their premature birth.”[3] The twins, in addition to their parents, sister, and grandmother, brought a claim against the impugned doctor.[4] At trial, the defendant-doctor was deemed to have owed the plaintiff-twins a duty of care who were thus “entitled to recover damages”[5] like their parents.

However, on appeal, the Court overruled the trial judge’s decision and found that “the [Appellant-] doctor owed a duty of care only to the [Respondent-] mother”[6] (emphasis added), not the Respondent-twins. In its policy-oriented justification, the Court highlighted how a “co-extensive duty of care to a future child could create a potential conflict of interest with the duty of the mother.”[7]

In Paxton v Ramji,[8] the defendant-doctor prescribed Accutane, an acne drug “that carries the risk of causing fetal malformation,”[9] to the mother of the plaintiff-child “on the understanding that [she] would not become pregnant while taking the drug”[10] given the father of the plaintiff-child’s vasectomy. However, “the vasectomy failed just when the Accutane was prescribed and the [plaintiff-] child was conceived … with considerable damage.”[11] In this case, the child was the only one who initiated a negligence claim against the impugned doctor.[12] In dismissing this action, the Court concluded that the Respondent-doctor “owed no duty of care to the [A]ppellant [-child].”[13] More specifically, in employing the two-pronged Anns[14] test, the Court concluded that (1) no prima facie duty of care towards unborn children arises[15] and (2) in the alternative, policy considerations would “make the imposition of [such a] duty unwise.”[16] The Court’s analysis was as follows:

1. No Prima Facie Duty of Care Arises

Despite finding that “it is reasonably foreseeable that a doctor can cause harm to a future child by prescribing teratogenic medication to a woman who is or may become pregnant,”[17] the Court held that there is insufficient proximity between a doctor and a future child to warrant a prima facie duty of care.[18] More specifically, the relationship between the two parties cannot be characterized as “close and direct.”[19] Rather, the Court labels it as “indirect”[20] on the grounds that the doctor cannot “advise or take instructions from a future child.”[21]

2. Policy Considerations Weigh Against the Imposition of a Duty of Care to Future Unborn Children

In citing the same “potential conflict-of-interest” argument as in Bovingdon, the Court holds that “recognizing a duty of care by a doctor to a future child of a female patient would affect the doctor's existing legal obligation, which is to the patient.”[22]

The Most Recent Decision – 2021

It would take thirteen years before this issue would wind its way up to the court of appeal again; however, to much the same result. In Florence v Benzaquen,[23] the defendant-doctor prescribed the fertility drug Serophene to the plaintiff-mother without adequately advising her of the “significant risk of conceiving multiple fetuses, the associated risks which include premature birth of the babies, and the resulting potential for significant neurological and developmental injuries to them.”[24] The mother ultimately became pregnant post-Serophene and the Appellant-triplets, “as a result of having been born prematurely, [had] serious disabilities.”[25] The minor Appellant-triplets brought their own claim against the doctor[26], separate from their parents’ claim.[27]

In concluding that the Appellant-triplets’ claim is “not viable in law,”[28] Justice Gillese (for the majority) “examined a variety of cases where an infant’s right of action [was] denied,”[29] including Bovingdon and Paxton. As such, the reasoning in Florence draws many parallels to the Court’s language in Bovingdon and Paxton. Specifically, Justice Gillese emphasizes the insufficiently proximate relationship between the Respondent-doctor and the Appellant-triplets,[30] owing to the fact that “a doctor cannot take instructions from or advise the future child,”[31] and her concern that “doctors would be placed in an unworkable position due to the inherent conflict of interest that would arise if they were found to owe a duty of care both to their patient and that patient's future children.”[32]

Implications of the Court’s Reluctance to Establish a Duty of Care Toward Preconception Unborn Children

This string of cases adheres to the prevailing Ontario law that no duty of care is owed to an unconceived child for preconception negligence, denying plaintiff children the availability of any legal recourse or remedy. Deemed to have no valid cause of action against doctors responsible for their parents’ care, the plaintiffs in such cases are stripped of any “right … to claim damages.”[33] Where most of these plaintiffs ultimately suffer from severe, permanent medical conditions, their inability to claim damages only exacerbates their adversity. In Florence, the triplets suffered from cerebral palsy as a result of the preconception negligence they experienced.[34] This is an “incurable”[35] disease that will “create[] lifelong medical obstacles”[36] for the triplets – and their ability to recover anything for themselves for their “constant care”[37] is inhibited.

Ontario Law Should Impose a Duty of Care Towards Preconception Unborn Children

Upon first blush, the policy justifications for denying children injured as a result of preconception negligence by their doctors may seem quite sound. The relationship between doctor and patient is one which requires a doctor to place the interests of their patient above anyone else. However, an approach could be developed which addresses the concerns over conflicts, while still allowing children injured preconception to recover damages. Such an approach was proposed by Justice Fairburn in his dissent in Florence.

Justice Fairburn’s Dissent in Florence

In Florence, Justice Fairburn issued a strong dissent to the majority’s decision whereby he interpreted the existing jurisprudence, including Bovingdon and Paxton, as in fact “leav[ing] 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”[38] – a viewpoint in stark contrast to the majority stances in these decisions which appear to deny the viability of preconception negligence claims unequivocally.

Justice Fairburn labels Bovingdon’s decision that “… there could be no breach of duty to the [Appellant-] twins”[39] as circumstance-specific. By priming this conclusion with the words “in the circumstance of this case,”[40] Justice Feldman “left open the question as to whether in different circumstances, a doctor may owe a duty of care to a future child”[41] (emphasis added). In fact, Justice Fairburn notes that Justice Feldman “made it clear in Bovingdon, at para. 73, that she was deciding the case narrowly, specifically noting that ‘it is undecided’ whether the courts in Ontario would ‘necessarily dismiss’ every claim where, but for the wrongful act or omission, the child would not have been born.”[42]

Justice Fairburn also cites Justice Feldman’s words in Paxton that “… there is no settled jurisprudence in Canada on the question whether a doctor can be in a proximate relationship with a future child who was not yet conceived or born at the time of the doctor's impugned conduct.”[43] In doing so, Justice Fairburn asserts that Paxton too leaves open a question regarding a doctor’s duty of care to a future child, specifically, whether a doctor in Canada “can be in a proximate relationship to a future child who has not yet conceived at the time of the impugned conduct.”[44]

Justice Fairburn also engages with the majority’s proximity analysis, specifically, their finding that “there was not a proximate relationship between the respondent and the appellants [because, inter alia], a doctor cannot take instructions from or advise the future child.”[45] Justice Fairburn dismisses this line of reasoning,[46] which echoes the words of Justice Feldman in Paxton, on the grounds that Ontario law imposes upon physicians “a duty of care to children born alive in cases where an injury is sustained during labor and delivery.” If the concept of proximity were fragile enough to be broken by the inability to communicate with the other party, cases of negligent conduct within the labour and delivery context would also necessarily have to deny the viability of plaintiffs’ claims. However, in Liebig v Guelph General Hospital,[47] this same Court affirmed that “health care providers are liable”[48] for their negligent conduct within the labour and delivery context.[49] Since “a physician cannot advise or seek instructions from a baby in the delivery process either,”[50] cases like Liebig would have been wrongly decided if the reasoning underlying the majority’s proximity analyses in Florence and Paxton were to be accepted and applied.

The “well-established law”[51] that a doctor owes a duty of care to a baby during labour and delivery also discredits the potential “conflict of interest” policy argument often cited by the Court. If a doctor can owe a contemporaneous duty of care to both the mother and yet-to-be-born child during the labour and delivery process without concerns of a potential conflict of interest, then there should be nothing stopping the imposition of an identical duty to yet-to-be-born children in contexts beyond labour and delivery. If “an infant, once born alive, can sue for damages sustained as a result of the negligence of healthcare providers during labour and delivery,”[52] it is only fair and just that an analogous child be accorded the same ability and right outside of the labour and delivery context. The context in which in utero negligence occurs should not and cannot justify the isolation of an entire class of infant plaintiffs from access to legal recourse.

Policy Reasons Supporting the Imposition of a Duty of Care Toward Preconception, Future Unborn Children

Justice Fairburn’s dissent prompts critical discussion around the importance of preserving the viability of plaintiffs’ negligence claims when the impugned conduct occurs preconception.

Denied any claim to damages, the direct plaintiffs of preconception negligence cases are left wholly dependent on their family members for both the initiation of a negligence claim and the effective administration of any compensation granted thereof. It is “fundamentally unfair and unjust [to] leav[e] a group of Canadians with no recourse unless their parent wants to launch a claim.”[53] Indeed, “these children should have their own legal rights,”[54] their own legal identity. Furthermore, while plaintiffs’ parents may be awarded some damages, depending on the substantive merit of the alleged negligence claim, such an award “comes with no legal requirement that [the] parents use any such funds to assist their children.”[55] As a result, these children are stripped of their “autonomy [and] their ability to have their own money and control their own lives,”[56] in direct contravention of the United Nations Convention on the Rights of Persons with Disabilities,[57] to which Canada is a signatory.

The direct plaintiffs of preconception negligence cases are children who are inherently vulnerable beings. Due to the carelessness of physicians, these children must grapple with the lifelong, bitter realities of their conditions. They are the ones who must live a life plagued with suffering. Therefore, if there is any party in such cases that should have the right to initiate an action for negligence and claim damages, it is them: the children whose lives have been catastrophically altered due to the negligent conduct to which they were subjected.

The Need for Ontarian Law to Evolve

In Florence, the Court concluded its decision with a reference to the principle of stare decisis and the associated requirement of courts to “adhere”[58] to “settled points of law.”[59] After recognizing that “it is settled law [in Ontario] that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception,”[60] the Court applied stare decisis in holding that the Appellant-triplets do not have a viable action against the impugned physician.[61] 

Post-Florence, the Supreme Court of Canada (“SCC”) declined to hear an appeal on the matter, marking the “third time”[62] it “reject[ed] leave to opine on the question of a duty of care to [an] as of yet unconceived [child].”[63] This is highly unfortunate, as it would have been a prime opportunity for the highest court in the land to adopt Justice Fairburn’s rigorous dissent in Florence and, ultimately, avail the flexibility that is actually inherent in Bovingdon and Paxton. These cases had in fact left open the door to a possible duty of care to future unborn children; however, now the matter may be left to legislators. In any event, it is hoped that at some point in the not-so-distant future, physicians will be held accountable for their errors, acts and omissions prior to conception.

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