High court won’t consider duty of care owed by doctors to children not yet conceived

The case involves triplets conceived with a fertility drug who were born at 26 weeks. At age two, they were diagnosed with cerebral palsy

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Does a doctor owe, could he or she ever owe, a duty of care to a fertility patient’s future children? Do children born disabled have a right to sue for alleged wrongdoing that occurred before they were even conceived?

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Those questions were at the crux of a fraught case before Canada’s top court, which Thursday declined a family’s leave to appeal the case, and in doing so appeared to decide the answer to both was, no

The case involves 14-year-old Ontario triplets born premature and severely disabled after their mother was prescribed a fertility drug that stimulates egg production. The woman contends she was never warned about the risks of multiple births, and that, because of her age and history should never have been prescribed the drug.

But an Ontario Court of Appeal ruled last summer that the law has been settled, that a doctor owes no duty of care to children before conception, and that imposing such a duty on them could put doctors in an impossible situation of competing interests: whose would take precedence, the unborn child’s, or the mother’s?

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In the view of one motion judge, the door has been firmly shut on cases where the prescription of fertility drugs resulted in brain damaged babies.

The family argues the law isn’t settled, that their triplets’ claim of negligence is novel and their claim deserved a fair and open hearing in court.

“I think it leaves a real gaping hole, in terms of the rights of disabled and vulnerable children, where the wrongdoing that led to their injuries may predate their birth,” one of the family’s lawyers, Duncan Embury, said.

The Florence triplets, Brody, Cole and Taylor were born in 2008, six months after their mother, Dana, was prescribed Serophene, an oral hormone that boosts ovulation, increasing the risk of multiples. “High-order” births — twins, triplets or more — have a higher risk of being born too early and, because of a premature birth, a higher risk of cerebral palsy.

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Dana Geall (she has since remarried) was 26 and had been trying to get pregnant for a short while only when she was prescribed Serophene. She conceived on the first try with the pills. When she learned, ten weeks into pregnancy, that she was carrying triplets, “I was shocked,” she said Thursday. “I was not expecting that at all.”

The babies were born at 26 weeks’ gestation, so small they could fit into their mother’s palm. By age two, they were diagnosed with cerebral palsy, where the brain can’t properly send messages to the muscles.

In 2011, the parents launched a lawsuit against gynecologist Dr. Susan Benzaquen, alleging Dana was not warned of the risks of multiples, should never have been prescribed the drug and, had she known the risks, never would have taken it.

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In her statement of defence, Benzaquen denies the allegations. She said a proper history was obtained, informed consent given and that prescribing Serophene was appropriate.

The triplets were later added to the negligence claim, the allegation that the doctor knew, or ought to have known, the fertility drug could cause harm not only to their mother, but also to a future child.

Benzaquen went to court to strike the triplets’ claim, on the basis that the triplets were not owed, and could not be owed a duty of care, because they were not conceived at the time, and they weren’t her patients. Their mother was.

Cole Florence (left), Brody Florence (right) and sister Taylor Florence (center).  Courtesy Dana Geall
Cole Florence (left), Brody Florence (right) and sister Taylor Florence (center). Courtesy Dana Geall

The motions judge, Ontario Superior Court Justice Darla Wilson agreed that the fertility drug was “unreasonable and unnecessary,” that Dana hadn’t been provided with information about the risks of multiple and premature births, and that she could make a claim of negligence.

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But Wilson said there was no injury to the fetuses arising from a negligent act, because conception had yet to take place, and that the claims of the triplets amounted to “wrongful life” claims that have been rejected by many courts, including another Ontario case that found a doctor owed no duty of care to brain-damaged twins, Karley and Kaylin Bovingdon, born after their mother was prescribed a similar fertility drug.

In that case, which ended in a $8.6 million settlement agreement struck between the parents and obstetrician, the Court of Appeal asked, “How can the child be compensated for being born? How can a court give damages that measure the value of no life versus a damaged life?”

Imposing a duty of care on a doctor to a future child could also interfere with a woman’s right to abort a fetus, court heard.

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Based on the Bovingdon case, Wilson said the door, in her opinion, was “definitely closed” on wrongful life claims involving fertility drugs.

In Canadian law, an infant born alive can sue for damages suffered as a result of negligence during labor or delivery. But in the Florence triplets case, “there was no injury to the fetus arising from a negligent act because conception had not taken place,” and the medication itself doesn’t cause birth abnormalities, Wilson said.

The family appealed to the Ontario Court of Appeal, but two members of the three-member panel dismissed the triplets’ appeal, saying the law in Ontario had been settled. However, in a written dissent, Ontario Associate Chief Justice Michal Fairburn questioned whether it was “plain and obvious,” based on earlier case decisions, “that there could never be any circumstances in which a physician owes a duty of care to a future child where the alleged negligence takes place prior to conception.”

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“I read those decisions as explicitly leaving the door open — even if just a crack — to the possibility that such a duty could exist,” Fairburn wrote.

However, the Supreme Court of Canada on Thursday dismissed an application for permission to appeal. As is standard, the court didn’t give its reasons.

Benzaquen and her lawyers declined to comment on the case.

“The duty that the Florence triplets claim should be owed to them is the exact same duty that the doctor owed to the mother, which was don’t prescribe a contraindicated medication,” Embury said.

“The real issue is, should someone who has been harmed by the negligence of another have the right to claim against that person … regardless of whether they were conceived at the time, assuming they were foreseeable,” he said.

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“Of course, in prescribing a fertility medication, there could no real question that the physician would be able to foresee the potential children. That’s the whole purpose of the medication.”

Fertility lawyer Sherry Levitan said a doctor doesn’t have a duty to children who don’t yet exist. “If a child who has not yet even been conceived has rights, those rights are often going to conflict with the rights of his or her mother,” Levitan said. “If a woman’s rights are subjugated to the unborn child’s rights, then we throw abortion under the bus.”

University of Toronto bioethicist Kerry Bowman said there are situations where there can be significant harms to babies “and we simply take a fairly narrow legal view. I’m not sure that’s fair.”

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Dana, who now has two other children, said she was “obviously devastated” by the Supreme Court decision. “I just feel my children have the right to have a case as well. What message does that send to them?”

I’m really lucky to have them, to have them in my life. They have faced so much over the years

Dana Geall, mother of the triplets

Cole, Brody and Taylor “are the most amazing people I have ever met,” she said. “I’m really lucky to have them, to have them in my life. They have faced so much over the years — surgeries and procedures and obstacles that you can’t even begin to wrap your head around.”

Cole and Brody will soon undergo hip surgery. Cole first had hip surgery when he was six, Taylor when she was seven. Taylor has also had deep brain stimulation. Cole was born profoundly deaf but received Cochlear implants when he was three, “opening up his world in so many ways,” Dana said.

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Brody is non-verbal. He doesn’t have the ability to talk, “but he’s a very, very bright guy who communicates in other ways,” Dana said. He smiles for “yes” and purses his lips for “no.” Brody has had spinal fusion, “and the list goes on and on. Every single year we’re faced with multiple things that my kids go through,” their mother said. The triplets need help with everything, from scratching an itch on their heads to feeding, and stretching their muscles at night to make sure they don’t get too tight.

“They are just the most positive kids, they just kind of roll with the punches, but it’s not really fair to them that they have to deal with all of these things, and challenges they face,” their mother said.

Her lawsuit goes on. But it will not involve a claim on behalf of the children.

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