Duty of Care and Physicians Responsibilities when Providing Fertility Drugs: Can an Unborn Child Make a Wrongful Life Claim

In July 2007, Ms. Dana Florence had begun taking Serophene, a fertility drug under the advice of her gynecologist, Dr. Benzaquen, the respondent. She and her husband had been attempting to conceive for only a few weeks. Shortly after, Mrs. Florence got pregnant and on January 1, 2008, she gave birth to triplets: Brody, Cole, and Taylor who were diagnosed with cerebral palsy.

In 2011, Ms. Florence and her husband, Jared Florence, commenced a negligence action against Dr. Benzaquen. They argued that Dr. Benzaquen had not advised Ms. Florence that using Serophene came with a significant risk of conceiving multiple fetuses and the associated risks that include premature birth of the babies, and a potential for significant neurological and developmental injuries to them. If she had known and been provided all the information necessary to make an informed decision about the use of Serophene she would not have risked taking the fertility drug.

On appeal, the triplets were added to the claim. Dr. Bensaquen brought a motion to strike the triplets’ claim on the basis that they were not viable at law.

Decision:

In 2021, the Ontario Court of Appeal found that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception. Nevertheless, the mother does have the right to sue the physician for any harm caused as the physician has a duty of care to the patient. Gillese J.A said: "I do not agree there is a lack of clarity in the law of Ontario dealing with wrongful life claims or that the law is unsettled in cases involving negligence that allegedly occurred before conception that is associated with prescription medication taken by the mother with resulting damage to babies that were not conceived at the time of the negligence. These claims have never been recognized in Ontario; the law is clear and there is no need to wait until trial to determine whether such claims are viable."[1] The court agreed that once a principle of law has been held to apply to a certain state of facts, the courts are bound to adhere to the principle, provided the facts of the case before they are substantially the same.