The Ontario Court of Appeal has stirred up debate about whether or not a physician owes a duty of care to a non-yet born child. In its 2008 decision in Paxton v. Ramji the court decided that a physician owes a duty of care only to the mother, not the child. However, two strongly-worded decisions out of British Columbia and an Ontario lower court have sought to set the record straight. (See below for a definition of ‘duty of care’)
A physician prescribed Mrs. Paxton a drug based on the belief that she could not become pregnant. Unfortunately, her husband’s vasectomy failed and Jaime Paxton was born with severe disabilities caused by her mother’s ingestion of the drug.
In its decision, the court raised social policy concerns which would negate any duty owed by the physician. For example, it found that if a duty of care was owed both to the mother and the child, it would interfere with the mother’s ‘right’ to abortion. (For those familiar with the law, you will know that there is no right to an abortion in Canada, only an absence of statutory law regulating care for the unborn.)
Justice Feldman, writing for all three judges, stated,
there is no settled jurisprudence in Canada on the question whether a doctor can be in a proximate relationship with the future child who was not yet conceived or born at the time of the doctor’s impugned conduct…
The court found that there were no existing “analogous” negligence categories or similar circumstances where a duty of care had been previously found to be owed by a physician. This reasoning justified the need to re-evaluate the case of physician-owed duty of care and the court’s conclusion that it could not possibly be owed.
I disagree. As did Justice Tausendfreund of the Ontario Superior Court of Justice in his October 2009 decision in Liebig v. Guelph General Hospital.
In Liebig, the court faced the question of whether Kevin Liebig, who had suffered brain damage during his delivery, had a right to a negligence claim against the hospital staff. Justice Tausendfreund found that he did have such a right and that "[t]he duty to both mother and fetus in the maternal-fetal care scenario has long been established in Canadian jurisprudence."
This decision is encouraging to those who recognize that life should be protected through all its stages, from conception until a natural death. Along with the Ediger case, discussed below, it is a jurisprudentially sound decision that takes the Paxton decision to task.
In fact, after completing a review of “the legion of reported decisions…on the duty owed to both mother and fetus in a maternal-fetal care situation”, Justice Tausendfreund concluded that “the Court of Appeal [in Paxton] could surely not have meant that the maternal-fetal care scenario when referring to “the proposed duty” as “a novel one.”
Justice Tausendfreund also notes that the Supreme Court of Canada confirmed that a child may sue for injuries caused before birth that results in damages as of the child’s date of birth (Winnipeg Child and Family Services v. G. (D.F.),  3 S.C.R. 925). In 1933, the Supreme Court unequivocally stated,
…it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.
Otherwise, the consequences would be dire: a child born with severe disabilities caused by a third party could not sue for compensation for necessary future care. Even Justice Feldman in Paxton acknowledges this problem.
This brings us to the March 2009 Supreme Court of British Colombia decision Ediger v. Johnston. In Ediger a physician was found to owe a duty of care to a child he delivered. The physician had attempted a forceps delivery without being properly prepared for a Caesarean delivery if the initial procedure failed. As a result of the delay, Cassidy Ediger suffered severe and permanent brain damage.
This B.C. case was decided subsequent to the Paxton case from Ontario. All parties in Ediger submitted arguments to the court on the potential implications of Paxton.
Though the B.C. court stated that “the arguably uncertain state of the law in this specific area” made the matter challenging, it also made clear that the binding case in this matter was Cherry v. Borsman, a 1990 B.C. Court of Appeal decision. Accordingly, in Ediger the court found that, as long as the child is born alive, “a physician owes a duty of care to a fetus, and a duty not to harm the fetus, if he or she should fail in meeting the duty of care to the mother.”
Justice Holmes also persuasively addressed the social policy concerns raised in Paxton; firstly, that a physician would be put in a position of conflicting duties to the mother and unborn child and secondly, that it would affect a woman’s ‘right’ to abortion. She stated that the two concerns are addressed by the fact that, in law, mothers do not owe a duty of care to their unborn children. This was determined by the Supreme Court of Canada in both the Dobson and Winnipeg Child and Family Services cases.
Justice Holmes clarified that to recognize a duty of care to an unborn child would not acknowledge, “in the fetus a separate legal status at that stage, which might therefore conflict with the mother’s autonomy because…any legal rights accruing as a result of a duty of care owed before birth only crystallizes at the time of the fetus’s live birth.” She also noted that since the Supreme Court of Canada established that a mother can make medical decisions without potential liability to the fetus (Tremblay v. Daigle), both policy concerns are addressed.
Justice Holmes also makes an important distinction between the case before her and cases where the physician counselled the female patient prior to conception, such as Paxton,
…the reasons as a whole make clear that at the time in question, the children were not only unborn, they were unconceived. It is indeed difficult to see how the doctor could have owed them a duty of care, because they were not in existence.
Lastly, Justice Holmes found that if Paxton was understood to find that a physician does not owe a duty of care to a conceived, unborn child that the decision would run contrary to existing case law (you’ll find a long list of cases at paragraph 200 of the decision) and it would contradict the leading Canadian text on the matter, Legal Liability of Doctors and Hospitals in Canada which states,
One significant aspect of obstetrics that distinguishes it from other areas of medical practice is that the physician owes a duty of care of two patients simultaneously: the expectant mother and her fetus…
Due primarily to Paxton, there is discussion about some lack of clarity in this area of law. The nearly 20 year old B.C. Court of Appeal Cherry decision runs contrary to the recent Paxton decision. To clarify the law, one of two things would need to occur; the legislature could establish the law on this point (as the government of Ontario did with s. 66 of the Family Law Act) as suggested by Justice Feldman, or the Supreme Court of Canada could agree to hear a case on the matter, which it has refused to do until this point.
In the interest of Canadians generally – and more specifically pregnant women, their unborn children and physicians – this legal ‘uncertainty’ cannot be permitted to continue. In the words of Voltaire, “Let all the laws be clear, uniform and concise.”
(Point of clarification: A ‘duty of care’ is created in certain relationships where one party has a duty to act a certain way, or refrain from acting carelessly towards another. For example, a school will owe a duty of care to a child in their care during school hours. If the child is hurt by slipping on a patch of ice in the school yard that should have been salted, the parents could potentially sue the school board.)