In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a summary from the principals underlying wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death litigation.
1. Wrongful Pregnancy
Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant1. They typical wrongful pregnancy case involves a negligently performed sterilization procedure that has resulted in the conception of an unexpected and, at least initially, unwanted child2. Still other cases arise in the context of sterilization procedures which failed, but not through any fault on the part of the defendant. In these cases, the allegations of negligence are based on a duty fully to inform the patient of the risk of failure of even a properly performed sterilization procedure3.
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
In Cataford, claims were advanced on behalf of the female plaintiff who underwent the surgery, her husband and the unexpected child. Deschenes C. J. held that, in principle, the plaintiffs had the right to recover damages that constituted an immediate and direct consequence of the defendant’s fault5.
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 loss6. 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 born7. 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
The following factors are considered by the courts in determining whether the defendant surgeon conducted a sterilization procedure is negligent:
1. Standard of Care
Whether the procedure is recognized within the medical community8.
Expert testimony as to whether the manner in which the procedure was conducted was appropriate9.
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 asphyxia10.
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 control11;
The effect of non-disclosure on the plaintiff as determined via application of the Riebl v. Hughes12 modified objective standard for disclosure (discussed in greater detail below under the heading “Wrongful Birth”)13;
How long after the sterilization procedure the pregnancy occurred14.
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 it16.
1 The Honourable Madam Justice Lax (Ontario Superior Court), Wrongful Life, Wrongful Pregnancy, Wrongful Birth, Ontario Trial Lawyer’s Association Spring Conference 1997.
2 See, 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”).
3 An example of this type of case is Joshi (Guardian ad litem of) v. Wooley,  B.C.J. No. 113 (B.C.S.C.)(hereinafter “Joshi”)
4 Supra note 2.
5 Supra 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.
6 The 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.
7 Cataford, supra note 2 at p.9.
8 Doiron et al. v. Orr et al.(1978), 20 O.R. (2d) 71 (Ont. H.C.J.) (hereinafter “Doiron”)
9 Grey v. Webster (1984), 14 D.L.R. (4th) 706 (N.B.Q.B.)(hereinafter “Grey”)
10 In this regard see the shoulder dystocia/brachial plexus nerve injury cases, Fashola (Next friend of) v, Salvation Army Grace Hospital,  O.J. No. 1107 (Ont. Gen. Div.); Pierre (Next friend of) v. Marshall,  A.J. No. 1095(Alta. Q.B.); Fleury (Next friend of) v. Woolgar,  A.J. No. 52 (Alta. Q.B.); and Brown (Litigation Guardian of) v. Sarraf, O.J. No. 3746 (Ont. Gen. Div.); see also breech birth cases such as Anderson v. Salvation Army Maternity Hospital, , N.S.J. No. 339 (N.S.T.D.); Gleason (Guardian ad litem of) v. Bulkley Valley District Hospital,  B.C.J. No. 1744 (B.C.S.J.); Martin v. Listowel Memorial Hospital  O.J. No. 3126 (Ont. Gen. Div.)(varied on appeal with respect to damages at  O.J. No. 4015)(C.A.)); Brimacombe v. Mathews,  B.C.J. No. 90 (B.C.S.C.) and Bauer (Litigation guardian of) v. Seager,  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.
11 bid; Suite v. Cooke,  A.Q. no. 696 (Que. C.A.).
12  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.  4 S.C.R. 634 (La Forest J.).
13 Grey, 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”).
14 Mummery v. Olsson,  O.J. No. 226 (Ont. S.C.J.)
15 Supra note 2.
16 Supra 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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