Premature birth can be a harrowing experience, both for parents and infants. It can also lead to hard cases, both on the facts and the law. Florence v. Benzaquen, 2021 ONCA 523 (“Florence”) is one such case. Three of the plaintiffs, Brody, Cole, and Taylor Florence, were minors. These three plaintiffs were born prematurely at 26 weeks gestation, and so 14 weeks pre-term. They suffered from neurological and developmental disabilities from which there is no recovery.
At issue, broadly speaking, was whether doctors in Ontario owe a duty of care to future unborn children. Dr. Susan Benzaquen was alleged to have prescribed the fertility drug Serophene to Dana Florence, the infant plaintiffs’ mother. Then 25 years old, Dana began taking Serophene in early July 2007. By the end of that month, Dana was pregnant. Her children, the infant plaintiffs, were born on January 1, 2008.
Three years later, the parents and triplets brought a claim against Dr. Benzaquen, a gynecologist, and Dr. Jon Fenton Roy Barrett, an obstetrician. The allegation against Dr. Benzaquen by Dana Florence was that she had not been provided with all the necessary information to make an informed decision about the use of Serophene. Particularly, Dana alleged that she was not told of the risk of conceiving multiple fetuses and the associated risk of premature birth as well as neurological and developmental injuries. Dana also asserted that Serophene should not have been administered—that it was contraindicated—given her age and the short period during which she had been attempting to conceive.
The infant plaintiffs, Appellants before the Ontario Court of Appeal, brought a separate claim. They asserted that Dr. Benzaquen, the Respondent on appeal, owed them a concurrent duty of care to not prescribe to their mother a medication that she allegedly knew or ought to have known could cause harm not only to their mother but also to them. The infants’ claim against Dr. Benzaquen was dismissed according to the Rule 21 Motion. This dismissal was upheld on Appeal by the majority of the panel, with Fairburn A.C.J.O. dissenting.
A Claim for Wrongful Life
The claim of the infant Plaintiffs was described by the motion judge as one for wrongful life. In this type of claim, a defendant is sued by a disabled child for failing to prevent that child’s birth.
Before the decision of the Court of Appeal, in this case, there was some chance, though very limited, that such a claim could be advanced; perhaps the door to a successful claim was ajar. After this decision, from which leave to appeal to the Supreme Court of Canada was denied on March 24, 2022, the door appears to be firmly closed.
The Present State of the Law on Wrongful Life Claims
The state of the law, as it applies to wrongful life claims is as follows:
“it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception.”
The point was also expressed by the majority in this way:
“the claims by unconceived babies against physicians for alleged negligence that occurred pre-conception will necessarily result in a determination that the claims are not viable in law.”
Before the Court of Appeal’s decision in Florence, the Court in Bovingdon (litigation Guardian of) v. Hergott, 2008 ONCA 2 (Bovingdon) and Paxton v. Ramjii, 2008 ONCA 697 (Paxton), had, it seemed, left the door to wrongful life claims at least slightly ajar. In Bovingdon, Feldman J.A. stated that it was unclear whether the courts would necessarily dismiss every claim for wrongful life. She went on to state that to determine if such a claim could be maintained, the court would need to determine in each case whether the doctor owed a duty of care to the future child.
The infant Plaintiffs in Florence asserted that their case was distinguishable from Bovingdon and Paxton as the drug prescribed to Dana was alleged to be contraindicated. This allegation was absent in Bovingdon and Paxton.
In Florence, the Court of Appeal applied the two-part Anns test. First, is there a relationship of proximity between the two parties in which a failure to take reasonable care might foreseeably cause loss or harm to a party? If so, a prima facie duty of care arises.
Second, are there policy reasons why that prima facie duty of care should not be recognized?
Concerning the first element of the Anns test, proximity, the majority in Florence noted that the Court in each of Bovingdon and Paxton found that the relationship between a fetus in utero and a physician was not sufficiently close and direct. The majority agreed with this assessment. The relationship was described as necessarily indirect, as the doctor could not advise or take instruction from the future child.
It is worth noting the criticism of this reasoning by Fairburn A.C.J.O., in dissent in Florence, that if that were enough to break the relationship of proximity, then Liebig, and cases like it (being cases about injuries sustained by infants during labor and delivery), are wrongly decided as a physician cannot advise or seek instruction from a baby in the delivery process.
The majority did not accept the Appellants’ argument that the allegation that the prescription of a fertility drug that was contraindicated changed the analysis to be carried out. Rather, they reasoned that the additional allegation regarding the contraindication of Serophene was relevant to whether the doctor breached the standard of care, not to whether a duty of care would arise in the first place.
Restated, the majority of the Court of Appeal reasoned that the allegation regarding the use of Serophene related to what Dr. Benzaquen would have to do concerning the infant Plaintiffs if she owed them a duty of care, not whether she owed a duty to them in the first place. Per the majority, the additional allegation did not give rise to a relationship between the doctor and the unconceived child.
Of note, the additional allegation is the basis for the differing opinion between the majority and minority of the Court of Appeal in Florence. Fairburn A.C.J.O. posed the question on appeal this way: “Is it settled law, in Ontario, that there are no circumstances in which a physician could owe a duty of care to a future child for alleged negligence that occurred pre-conception?” Fairburn A.C.J.O. agreed with the majority that whether or not a drug was contraindicated was relevant to the analysis of the standard of care. However, he also reasoned that whether or not a drug was contraindicated was relevant to the proximity analysis under the Anns test.
For the second stage of the Ann’s analysis, (the policy analysis), the majority agreed with the motions judge, who had held that policy considerations militate in favor of eliminating a duty of care if one had even been found. The policy reason articulated was that a doctor would be placed in a conflict-of-interest position if they owed a duty of care to their patient and to the unconceived children of that patient. The majority did appear to accept that there might be circumstances in which a conflict would not arise given the particular medication or treatment at issue but reasoned nonetheless that this would not detract from the general policy concern that, per the majority, doctors would be placed in an unworkable position if a duty were owed to both their patient and their patient’s future children.
The Appellants contended that a full trial was necessary to fairly decide the claims that they were advancing. The majority did not accept this. Rather, the majority accepted the respondent physician’s position that, in Ontario, it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception.
Where does this leave potential Plaintiffs?
Post-Florence, particularly after the Supreme Court of Canada’s refusal to hear an Appeal, the door to wrongful life claims in Ontario seems to be closed. Perhaps some unique circumstance in the future would provide an opportunity, but given the general language used by the majority, it appeared that no duty of care will be owed to an unconceived child when the negligence has occurred before conception.
However, the foregoing is only one subset of possible circumstances in which claims could arise due to negligence on the part of a healthcare professional which leads to injury to a child later born alive. For example, the wording of the majority in Florence seems to leave open the possibility of a claim advanced by a child already conceived at the time of the allegedly negligent act. Whether the fact of that conception is known or unknown to the doctor at the time treatment is provided may influence how such a case is assessed by the Court.
Furthermore, Florence does not change the settled law in Ontario that medical professionals owe a duty of care to children born alive in cases where an injury is sustained during labor and delivery. This was reaffirmed in Liebig v. Guelph General Hospital, 2010 ONCA 450.
Finally, parents and particularly mothers of children who have sustained injuries as a result of advice given by physicians to the parents should keep in mind that they have separate claims of their own that they can advance. Such claims—like Dana Florence’s that she was not informed of the side effects of the medication Serophene and that the medication was contraindicated—can stand on their own. These claims do not face the same hurdles as one for wrongful life. If their separate claim is successful, the parent can, for example, recover the cost associated with caring for a child that is injured due to the taking of a medication that was contraindicated. The time and cost associated with this care can be enormous and recovery can be a tremendous benefit to parents and children.
Another example of such a case is seen in Bonenfant v. Ponesse, 2021 ONSC 8544. Tara Sweeney, of Soloway Wright LLP, and Ryan Garrett appeared for the Plaintiffs at a motion to strike, brought on behalf of one of the defendant physicians, Dr. Julie Ponesse. Though a detailed review of the decision in Bonenfant is beyond the scope of this case comment on Florence, it is worth noting that it is for what is called “wrongful birth”, which is a different type of claim than for wrongful life. For any potential plaintiff, or their parent(s), consulting with a medical malpractice lawyer or personal injury lawyer is always advisable. Advancing medical malpractice claims requires knowledge of the substantive law that applies in this area and familiarity with the pursuit of medical service providers in their areas of expertise. This is especially so in relation to claims involving birth injuries and claims for wrongful birth.
At Soloway Wright LLP we have expertise dealing with medical-legal issues. We would be happy to speak with you about your potential Medical Malpractice case.
