Law Times

PAGE 12 FOCUS refusal in late April to deny leave to appeal from the judgment of the Ontario Court of Appeal in Paxton v. Ramji. A unanimous court concluded that a doctor owed no duty of care to a future child subsequently born to the doctor's patient, when prescrib- ing Accutane to the patient. "Paxton is now a very strong le- gal statement indeed," says Darryl Cruz, a partner with McCarthy Tétrault LLP's Toronto office, here's no doubting the significance of the Su- preme Court of Canada's OCA: doctor owed no duty of care to future child T SCC denies leave to appeal in Paxton BY JULIUS MELNITZER For Law Times who with colleague Sarit Batner represented Dr. Shaffiq Ramji. Strong as it might be, however, of care to a future child of a female patient, the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best Paxton is definitely not the last word on the subject. That's partly because Justice Kathryn Feldman, who wrote the reasons on behalf of a bench composed of justices Michael Moldaver and Russell Juriansz, based her conclusion on the conflicts that would arise if a doctor owed a duty of care to the future child as well as his patient. "If a doctor owes a duty E.V. Litigation & Financial Services Inc. Elaine G.Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations Structured Settlements BC LT 4/6/05 2:54 PM Page 1 evlitigation@rogers.com 4 5 Sheppar d Avenu e East, Willowdale, Ontario M2N 5W9 Suit e 900 Telephon e o r Fax (416 ) 930-1370 (905) 731-5812 interests of the patient in decid- ing whether to prescribe a terato- genic drug or to give the patient the opportunity to choose to take such a drug," Feldman wrote. Accutane is a teratogenic drug that can cause fetal malformation if taken during pregnancy. Doc- tors therefore take great care be- fore prescribing the drug to wom- en of child-bearing potential. In January 2002, Dawn Pax- ton, the plaintiff, presented with severe acne. After discussing the need to avoid pregnancy while taking Accutane, determining that Paxton's husband had un- dergone a vasectomy and that she had no other sexual partners, and after receiving the results of a negative pregnancy test, Ramji prescribed Accutane. A month later, Paxton took an- other pregnancy test, which also came back negative. But the result was erroneous, her husband's va- sectomy having failed. Unaware of her pregnancy, Paxton contin- ued with the Accutane. In March, Paxton stopped child could stoke the fires of the pro-life movement to the extent it suggests that unborn children have rights," she says. Still, Cruz says Paxton is right in principle. "The value of the de- cision is in letting doctors know that the legal duty is directly to the patient," he says. "Legal clar- ity is the important thing here, because at the end of the day, the damages will be sorted out and we'll have a system that appro- priately reflects any losses." However that may be, it's 'Paxton is now a very strong legal statement indeed,' says Darryl Cruz. Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM taking the Accutane because she wasn't feeling well. She saw Ramji and learned that she was preg- nant. She elected not to abort. Jaime Paxton was born with se- vere disabilities because of the exposure to the Accutane. As Feldman saw it, the con- patient agrees to fully comply with [the applicable protocol], in order to avoid the risk of a lawsuit brought by a child who is conceived despite compliance with the [protocol] or because the mother fails to comply with the [protocol]," Feldman wrote. Behind Feldman's reasoning, flicting duty between acting in the best interests of the mother and of a future child could have an "undesirable chilling effect" on doctors. "A doctor might decide to refuse to prescribe Ac- cutane to a female patient, even where it is indicated and the however, lurks the abortion con- troversy, which she refers to only implicitly in her reasons. "Thus, imposing a duty of care on a doctor to a patient's future child in addition to the existing duty of the female patient creates a conflict of duties that could prompt doctors to offer treat- ment to some female patients in a way that might deprive them of their autonomy and freedom of informed choice in their med- ical care," she wrote. According to Susan Chap- man, who with colleague Paul Pape of Toronto's Pape Barristers Professional Corp. the Paxton family, imposing a duty on doctors in this case could have implications for the ongoing abortion debate. "A mother doesn't have a duty to the unborn child in the abortion context, but imposing a duty on a doctor for a future represented Malach + Fidler LLP Mediation & Arbitration Services May 4, 2009 • Law TiMes already apparent that Paxton is controversial. In March 2009, the British Columbia Supreme Court distin- guished Paxton and questioned the reasoning and scope of the case. "[Defence counsel] refers to potential impossible conflicts for physicians, in the care of mother and fetus, where the medical in- terests of each may differ," the court wrote in Ediger v. Johnston. "However, any such conflict will be addressed in no different a fashion than any conflict between the medical interests of a mother and her baby. The mother acts as 'intermediary' between physician and fetus, and makes medical de- cisions for the fetus and herself." "The mother's intermediary role is recognized in the standard of care which the recognized duty obliges, and serves to relieve the physician from liability arising from a conflict between the medi- cal interests of mother and fetus." According to Chapman, Edi- ger also limits the interpretation of Paxton which suggests that the doctor's duty to the future child never exists. "The court interprets Paxton as applying only to cases in which a conflict can be estab- lished," she says. In April, another British Columbia Supreme Court judge decided in Cojocaru v. British Columbia Women's Hos- pital that Ediger had correctly interpreted Paxton. LT A Fair Settlement Is No Accident Jon Fidler, C.Med. David Dempster 439 University Avenue uit e 1401 S Toronto, Ontario M5 G 1Y8 (416) 598-1667 (416) 598-5222 (fax) Stephen Malach,Q.C. Ivan Luxenberg Uni t 30 Wertheim Court 6 L4 B 1B (905) 889-1667 e-mail: mediation@malach-fidler.com www.malach-fidler.com Henderson_LT_May4_09.indd 1 www.lawtimesnews.com 4/30/09 3:27:15 PM Richmond Hill, Ontario 9 (905) 889-1139 (fax)

• Cover
• North Pole First
• Bits & Bytes
• Focus On Personal Injury Law