The disagreement between majority and dissent in Florence v Benzaquen, 2021 ONCA 523 provides the Supreme Court of Canada its first opportunity to consider whether a duty of care can be owed by a physician to an unborn child. At its core, the disagreement turned on the importance ascribed to the contraindication of a fertility drug. The Defendant physician had prescribed Seroquel—a drug that carried the risk of multiple and premature births—and the Appellant triplets were later born with serious disabilities at 26 weeks’ gestation.
Crucial to the dissent was the allegation that the Defendant prescribed the drug despite it being contraindicated based on the mother’s young age and brief period of only three weeks attempting to conceive with her husband.
In the dissent’s view, the allegation that the drug was contraindicated in those circumstances critically distinguished the caselaw instead followed by the majority as authority that no duty of care could be owed by physician to unborn child. The majority found that the Appellants had merely raised “a distinction without a difference” and that the duty of care analysis from the decision in Bovingdon v Hergott, 2008 ONCA 2 and cases that followed nevertheless applied.
The Majority Reasons
In Bovingdon, the Court held that no duty of care was owed by the physician to unborn twins in the context of a lack of informed consent by the mother as to the possible consequences of a fertility drug. However, the Plaintiffs in that case had not alleged that the fertility drug was contraindicated.
Yet, the majority found that this additional allegation went only to the question of whether the Defendant had breached the standard of care and was “not relevant to whether she owed Ms. Florence a duty of care.” That finding was also consistent with the lower court’s reasoning that the Appellants had failed to establish a prima facie duty of care under the first stage of Anns test due to a lack of proximity and based on policy considerations.
The relationship between unborn child and physician was not proximate because “the doctor cannot take instructions from nor advise an unconceived child.” Moreover, the potential duty of care was at odds with important policy considerations that arose from the possible conflict between concurrent duties owed by physicians to unborn children and their mothers. Similar residual policy considerations would also have militated against a prima facie duty of care at the second stage of the Anns test.
As a result, the majority concluded that in Ontario, it was settled law that a physician did not owe a duty of care to future children for alleged negligence that occurred pre-conception.
The Dissenting Reasons
The dissent disagreed and found that the difference between a drug being indicated and contraindicated could have a serious impact on determining whether a physician owed a duty of care to a future child. The dissent found that the caselaw relied upon by the majority in fact contemplated the possibility of establishing the very duty of care at issue on the precise facts of the case at bar because the Court in Paxton v Ramji, 2008 ONCA 697 explained:
The court [in Bovingdon] left open the question whether a doctor would owe a duty of care to a future child where the drug being prescribed to the female patient was contraindicated during pregnancy and would cause damage to a fetus…
The dissent further disagreed with the majority as to the correctness of the motion judge’s Anns analysis in respect of both proximity and policy considerations. First, a physician’s inability to take instructions from or advise a future child was not dispositive of proximity otherwise decisions where negligence had been established during delivery were wrongly decided. A physician could no more take instruction from or advise a baby during delivery than he or she could with an unborn child before birth.
Second, the dissent found that the contraindication of the fertility drug addressed the policy concerns arising from conflicting duties owed to mother and unborn child. If indeed contraindicated, the fertility drug ought not to have been prescribed to the mother to begin with. Accordingly, there was no conflict with the physician’s further duty to unborn children not to prescribe the contraindicated fertility drug.
Why This Decision is Important
Should there be a further appeal, this decision will offer the SCC its first opportunity to address whether to recognize a duty of care between physician and unborn child. Such a decision would of course have widespread consequences throughout Canada on this important issue.
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