Law Times

LAW TIMES / APRIL 28, 2008 FOCUS PAGE 17 'Wrongful birth' finding upheld in twins case BY GRETCHEN DRUMMIE Law Times have a stand-alone claim for acts of negligence occurring prior to, and perhaps leading to, their birth. In Bovingdon v. Hergott, the T wo recent Ontario cases have the potential to re- solve when children will Ontario Court of Appeal decided in January that a doctor must pay $8.6 million to the family of dis- abled twins for negligence in pre- scribing fertility drug Clomid. The court upheld a jury's finding that while the drug was not contrain- dicated for that particular woman, she wasn't properly informed of the risks associated with taking it. The court also found the injured twins couldn't sue Dr. Paul Hergott for his failure to disclose the risks. Both sides are seeking to appeal; the Bovingdons on the so-called "wrongful life" issue — which is a claim brought by a child for injuries occasioned by negligent acts that took place prior to birth, and per- haps prior to conception. Hergott is seeking to appeal on the Krangle v. Brisco ruling, which decided the question of whether there are limits to damages in wrongful birth claims because the parents were awarded the extraor- dinary costs associated with raising their injured children. The leave applications in Bov- is currently under reserve in the appeal court. The Paxtons lost at trial on the issue of breach of the standard of care so they're appeal- ing on liability. Meanwhile Dr. Shaffiq Ramji is cross-appealing on the wrongful life issue because the trial judge ruled that had there been a breach of the standard of care, a duty was owed to the future child. If both cases are ultimately heard ingdon have been referred to a Su- preme Court panel. The other case, Paxton v. Ramji, some important differences that could be significant in the wrongful life analyses." Bovingdon was an informed consent case because assuming the mother was properly informed it was ultimately her decision as to whether to take the drug or not, she says. Carolyn Bovingdon had a personal history that made it clear to everyone she would not be good with a premature birth and was very anxious about the prospect. The drug has a 10-per-cent chance of twinning. With twinning, the evidence was of a very strong re- lationship to premature birth. Bovingdon testified the doctor told her there was no risk. Hergott testified he told her there was a three- to five-per-cent risk because that's what he thought it was. The jury found he was negligent in tell- ing her the risk was three to five per cent when it's in fact 10. On the basis of that misrepre- sentation, Bovingdon took the drug and it resulted in twinning, prema- ture birth, and severe disabilities. The Bovingdons have been caring for their children for 13 years and only made a claim for extraordinary expenses. The Canadian Medical Protective Association took the po- sition, and lost, that when the twins are 18 the parents no longer have a legal obligation to care for them, therefore they were not entitled to any further compensation. Chapman says the parents had an undisputed claim for wrongful birth. But did the children have an independent wrongful life claim? The appeal court found the wrong- ful life nomenclature misleads and cases involving fetal injuries ought to be determined by the application of normal tort principles; the courts must take a case-by-case analytical approach and reject categorization. In a nutshell, Chapman says the by the top court, they could finally "resolve the controversial issue of when, or if ever, children can sue physicians for acts of pre-birth neg- ligence," says Susan Chapman, of Pape Barristers Professional Corp. in Toronto. She acted for both fam- ilies on the appeals with Paul Pape. Chapman says the cases are similar in that they both raise the wrongful life issue, but "there are court said, "forget the labels, forget calling it wrongful life, we're just go- ing to run it through the ordinary negligence standard." "The first issue in negligence is whether there's a duty of care." Justice Kathryn Feldman wrote that the duty of care was to the mother, and it was to inform her of the risks. But because the drug was not contraindicated for her, and be- cause it's an informed consent case, once the doctor discharges his 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 Alan Farrer - Managing Partner | Desmond Dixon - Partner | David Neill - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. Vlit_LT_Mar17_08.indd 1 3/13/08 11:55:47 AM We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom has a duty to the unborn children, then the court in Bovingdon found that could conflict with his duty to the mother to provide her with her options and to allow her to make her decision," says Chapman. "But they also in Bovingdon refer to Pax- ton and comment that where a drug is contraindicated the case might be different and the duty to the future child may not be extinguished." The Paxton case involved Ramji's Two cases could finally 'resolve the controversial issue of when, or if ever, children can sue phy- sicians for acts of pre-birth neg- ligence.' says Susan Chapman. to the mother he has no duty to future children because it's now her decision to take the drug or not. The Supreme Court has already prescribing of powerful acne drug Accutane to Dawn Paxton, a wom- an of childbearing years. He did not advise her to use two methods of birth control, as recommended by the manufacturer, and relied on her husband's four-year-old vasectomy. She became pregnant almost im- mediately and refused the doctor's suggestion she abort the fetus. The child was born seriously offered women parental immu- nity for negligence against their children for damage done in utero. The children did not, then, have a stand-alone claim against the doc- tor in prescribing the drug to their mother, said the court. "So the problem in an informed consent case is if the doctor also injured by the drug. Two forms of potential liability were alleged: that the drug ought not to have been prescribed at all (ie. it was con- traindicated) then the child would have been born but uninjured. Secondly, if the drug was not con- traindicated, but the patient was not properly informed about birth control methods and but for that negligence the child would not have been born. The trial judge recognized there is a duty of care to not prescribe the Trust [ drug in circumstances where it is contraindicated and that it is a duty owed by the doctor to both the mother and future child. The judge also determined that the claim based on the manner of prescription, that is the mother should have been told to use two forms of birth control, is a wrongful life claim because but for the negligence the child would not have been born, and no such claim exists in Canada. In the appeal, the CMPA took the position that physicians do not owe any duty of care to uncon- ceived/unborn children, and Ramji argued doctors have absolute im- munity from negligent conduct re- sulting in harm to the unborn. The Paxtons argued a duty is owed in both circumstances, and the purpose of proper medical management in the administration of Accutane is to avoid the serious birth defects which their child has. They further said this is not a case in which the drug may be taken if the mom is prepared to take the risk of causing birth defects in the fetus and informed consent does not enter the debate. They said proper precautions are required and had the mother refused to take such precautions the doctor would have been obliged not to prescribe the drug. Therefore, it is not about informed consent. LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Untitled-1 1www.lawtimesnews.com 4/7/08 9:02:11 AM

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