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Bovingdon v Hergott, 2008 ONCA 2 (Link)

Facts:

The appellant mother had a premature baby, went back on birth control. The mother then stopped taking birth control, but failed to begin ovulating. The respondent doctor gave her a fertility drug (known to increase the potential for twins). The doctor said that he notified the mother of the risks. The mother said that she was not notified of risks.

The mother became pregnant with twins. The twins were born prematurely with severe disabilities. The mother and family sued doctor in tort for failing to provide all the necessary information to allow mother to make informed decision about whether to take the fertility drug.

At the Superior Court of Ontario: Jury found the doctor negligent; also found causation (that if the mother had been told the risks, she would not have taken the drug). The court held that the doctor had a duty of care to the twins; breached duty meant that damages should be awarded -- this was not about “wrongful life” (was not a case where the doctor’s negligence only caused the twins to be born; also led to their damage. Also, wrongful life is not recognized in Canada).

The doctor appealed.

Issue(s):

Did the doctor owe a duty of care to the future child under the circumstances?

Ratio:

A doctor has a duty of care to the mother, but not to the fetus.

Analysis:

The court is critical of Lacroix (Litigation Guardian of) v. Dominique (2000), 202 D.L.R. (4th) 121 as too simplistic
** Some cases (in the 1st category; see comments below) are not clear: the doctor may have caused or contributed to damage; but could also have caused or allowed the child to be born

Instead of using Lacroix, use duty of care/standard of care/breach/damage analysis
** It was the mother’s choice to take drug that had risk of producing twins; she was entitled to take that risk (mother’s right to choose) -- this concerns personal autonomy policy considerations.

The appellant had no duty of care to the future children not to cause them harm in prescribing the drug to the mother. The doctor owed a duty of care only to the mother. That duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision. Standard of care is to inform mother.

There is no obligation on the plaintiff to make the choice a reasonable person would have made -- instead it is about whether the particular plaintiff would have made that decision.

Holding:

Doctor breached duty of care to mother. Doctor had no duty of care to unborn children

Comments:

Secondary issue not decided on by the court: would the claims be properly characterized as claims for wrongful life?

Case law on Wrongful Life
** Concept of "wrongful birth" is not challenged, only "wrongful life"
*** This cause of action is untenable in Canadian law: How can the child be compensated for being born?
** Child’s claims can be stated in two categories (from Lacroix)
*** Case 1. Cases in which the abnormalities have been caused by the wrongful act or omission of another
*** Cases 2. Cases in which, but for the wrongful act or omission, the child would not have been born at all

First case
** Child has valid claim: defendant’s wrongful act caused harm; E.g. failed abortion that injures fetus

Second case:
** Child has no valid claim: defendant’s negligence did not cause harm to child but only caused parents to proceed to conceive; E.g. when doctor fails to warn the mother about the risk of giving birth to a child with disabilities
** Claim is not for the harm, but for being born
** Not recognized for policy reasons:
*** 1. Impossible to calculate claim for damages
*** 2. Doctor can not owe a duty to a child to give its mother the opportunity to terminate its life


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