One of the first reported wrongful pregnancy cases in Canada was Cataford⁴ in which the defendant surgeon negligently conducted a ligature of the fallopian tubes. The female plaintiff already had 10 children at the time this sterilization procedure was performed. Four months post-surgery, the plaintiff was found to be pregnant and subsequently gave birth to a healthy baby boy.

A. Whether a Recognized Action Exists

It is clear from Cataford and the subsequent case law that, in wrongful pregnancy claims, the adult female plaintiff, the mother of the unexpected child, has a viable claim. The adult male plaintiff, the father of the unexpected child, also has a claim, but this claim is derivative in that it flows from the mother’s loss.⁶ The unexpected child, however, does not have any claim. Such claims, which are asserted on the child's behalf for damages suffered in being born, and are broadly known as wrongful life claims, are rejected as being entirely without foundation. In Cataford the child plaintiff's claim is denied on the basis that it is clearly impossible to compare the situation of the infant post-birth with the situation he would have been in if he had not been born.⁷ Thus the law is clear that no duty is owed by a doctor to a fetus not to allow it to be conceived and then born.

B.Factors Considered in Determining Liability

1. Standard of Care

Whether the procedure is recognized within the medical community.⁸

Expert testimony as to whether the manner in which the procedure was conducted was appropriate.⁹

Those criteria are the same as those employed in all obstetric negligence cases, including those for injuries arising during labour and delivery, which do not fall within any of the categories delineated in this paper, for example, cases of should dystocia, breech birth and consequences of fetal-maternal blood loss or fetal asphyxia.¹⁰

2. Standard of Disclosure

Whether the defendant surgeon advised of the chance that the procedure would not succeed and that an unwanted pregnancy might occur and recommended use of alternate methods of birth control;¹¹

3. Causation

The effect of non-disclosure on the plaintiff as determined via application of the Riebl v. Hughes ¹² modified objective standard for disclosure (discussed in greater detail below under the heading “Wrongful Birth”);¹³

How long after the sterilization procedure the pregnancy occurred.¹⁴

As in other classes of medical malpractice claims, the issue of medical record keeping is relevant to finding a breach of the standard of disclosure in the obstetric negligence context. In Kealey¹⁵, Lax J. states that, where notes are absent, there is no reason for a physician to recall the details of conversations with patients. She further notes that a patient is likely to recall at least the substance of the discussion with a doctor and that, where the patient’s recollection is supported by other evidence, there is no reason not to rely on it.¹⁶

Notes:

¹The Honourable Madam Justice Lax (Ontario Superior Court), Wrongful Life, Wrongful Pregnancy, Wrongful Birth, Ontario Trial Lawyer's Association Spring Conference 1997.

²See, for example, Cataford et al. v. Moreau (1978), 114 D.L.R. (3d), 585 (Que. S.C.-Deschenes C.J.) (hereinafter “Cataford”): Kealey et al. v. Berezowski et al. (1996), O.R. (3d) 37 (Ont. Gen. Div.)(hereinafter “Kealey”).

³An example of this type of case is Joshi (Guardian ad litem of) v. Wooley, [1995] B.C.J. No. 113 (B.C.S.C.)(hereinafter “Joshi”)

⁴Supra note 2.

⁵Supra note 2 at p.10 of the Quicklaw judgment. Such recovery is based on the language of article 1075 of the Civil Code which parallels that used to define the common law concepts of causation and remoteness.

⁶The distinction between the mother's and father's claims is based on the notion that a duty of care is owed by the defendant doctor to the mother and is not deemed to extend to the father.

⁷Cataford, supra note 2 at p.9.

⁸Doiron et al. v. Orr et al.(1978), 20 O.R. (2d) 71 (Ont. H.C.J.) (hereinafter “Doiron”)

⁹Grey v. Webster (1984), 14 D.L.R. (4th) 706 (N.B.Q.B.)(hereinafter “Grey”)

¹⁰In this regard see the shoulder dystocia/brachial plexus nerve injury cases, Fashola (Next friend of) v, Salvation Army Grace Hospital, [1992] O.J. No. 1107 (Ont. Gen. Div.); Pierre (Next friend of) v. Marshall, [1993] A.J. No. 1095(Alta. Q.B.); Fleury (Next friend of) v. Woolgar, [1996] A.J. No. 52 (Alta. Q.B.); and Brown (Litigation Guardian of) v. Sarraf, [1998]O.J. No. 3746 (Ont. Gen. Div.); see also breech birth cases such as Anderson v. Salvation Army Maternity Hospital, [1989], N.S.J. No. 339 (N.S.T.D.); Gleason (Guardian ad litem of) v. Bulkley Valley District Hospital, [1996] B.C.J. No. 1744 (B.C.S.J.); Martin v. Listowel Memorial Hospital [1998] O.J. No. 3126 (Ont. Gen. Div.)(varied on appeal with respect to damages at [2000] O.J. No. 4015)(C.A.)); Brimacombe v. Mathews, [1999] B.C.J. No. 90 (B.C.S.C.) and Bauer (Litigation guardian of) v. Seager, [2000] M.J. No. 356 (Man. Q.B.). The causation analysis in these cases also parallels that employed in wrongful pregnancy cases and wrongful birth cases (See factors relevant in determining causation as outlined below). Some also emphasize the “material contribution” analysis of causation set out in cases such as Athey v. Leonati (1996), 140 D.L.R, (4th) 235 at pp. 239-240.

¹¹bid; Suite v. Cooke, [1995] A.Q. no. 696 (Que. C.A.).

¹²[1980] 2S.C.R. 880 (Laskin C.J.). This application of this test in the obstetric negligence context was more recently reiterated in Hollis v. Dow Corning Corp. [1995] 4 S.C.R. 634 (La Forest J.).

¹³Grey, Supra note 9 at p.6 of the Quicklaw judgment. In this particular case the Court has the advantage of knowing the plaintiff's behaviour following a second tubal ligation, namely, her failure to use alternate methods of birth control despite her knowledge that the success of the procedure was not guaranteed. Indeed, the defendant's failure to inform was not deemed to be the cause of her damages in this circumstance. See also Dendaas (Taylor) et al. v. Yackel (1980) 109 D.L.R. (3d) 455 (B.C.S.C.) (hereinafter “Dendaas”).

¹⁴Mummery v. Olsson, [2001] O.J. No. 226 (Ont. S.C.J.)

¹⁵Supra note 2.

¹⁶Supra note 2 at page 7 of the Quicklaw judgment. See also the unreported decision of Juriansz J. in Simon v. Lusis (oral reasons for judgment delivered October 20, 2000), currently under appeal, regarding record keeping obligations beyond obstetric context.

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