In Paxton v. Ramji, a major decision released today, Madam Justice Margaret Eberhard of the Ontario Superior Court has found that a physician owed a duty of care to a child who had not yet been conceived, let alone born. It is the first such case in Canada.
The action was brought by the parents of a child who was born with abnormalities. She had been conceived after her mother began taking medication for acne. The treatment, “Accutane”, was prescribed by the woman’s family doctor.
The abnormalities afflicting the child, Jaime, were described by Justice Eberhard as follows: “At birth she had a right facial palsy, seizures, generalized hypotonia, megalencephaly of the left occipital lobe of her brain, prominent dysmorphic features, hearing loss, anotia – an absent right ear and microtia – a malformed left ear.”
Justice Eberhard undertook a detailed assessment of damages and of the facts relevant to the liability issue. We have not summarized this aspect of the decision here. Instead, we have focused on her legal analysis of the cause of action, which the defence characterized as one for “wrongful life”.
Her Honour reviewed numerous Canadian and some U.S. and Commonwealth authorities, all of which had concluded that no cause of action exists for “wrongful life”. The plaintiff cited a couple of Australian cases, which Eberhard J. said were “in the vast minority”, which lent some support to the existence of the principle.
Justice Eberhard dealt with the caselaw in an interesting way. She agreed that courts should not recognize claims for “wrongful life”. But she then re-framed the problem in a different way, leading her to find that a cause of action did exist.
Following her review of the authorities, she said, “Having reviewed these and the vast array of cases cited by the parties to demonstrate the principals [sic] enunciated in the ‘wrongful life’ cases and the Canadian application of those principles, I accept that a claim properly characterized as a ‘wrongful life’ claim fails in Ontario as the cause of action is not and should not be recognized for the very reasons first enunciated: How can we say abnormal existence is worse than none at all and if we could, however could the compensation be measured?”
Justice Eberhard rejected the “wrongful life” cause of action because, at its heart, it involves the proposition, “But for your negligence, I would not have been born.” But she felt that Jaime Paxton’s position could be better characterized this way: “But for your negligence [in prescribing Accutane to a woman of child-bearing potential], I would have had life without birth defects.” Her Honour went on to say this:
So, if this is the first tort case in Canada to recognize a duty of care to a child pre-conception, it is not an invention of this court. Rather, it is an acceptance of the existence of a duty already observed by the medical profession. I find that Dr. Ramji owed a duty to the unconceived child of a woman of child bearing potential seeking Accutane not to prescribe it unless he was satisfied, in accordance with the standard of care required of a reasonable and competent doctor in similar circumstances, that she would not become pregnant while taking the drug.
But while the plaintiffs cleared this huge legal hurdle, they lost the case on other grounds: Jaime’s mother was found not to be a woman of child-bearing potential. Justice Eberhard held that the Ontario standard of care in these sorts of cases is that a doctor may be satisfied that the woman is not of child bearing potential if she is surgically sterilized. Here, the child’s father had undergone a vasectomy 4 ½ years earlier. Her Honour held that it was reasonable for the defendant doctor to conclude, as a result, that the mother no longer had child-bearing potential. The defendant doctor breached no duty by prescribing Accutane.
Accordingly, the action was dismissed.
It will be interesting to see what happens from here. The defendants will not have been pleased with the court’s acceptance of a duty of care owed to a not-yet-conceived child. This finding will surely be relied on by plaintiffs in future cases across the country. But the action was still dismissed, so the defendants are not in a position to appeal.
The plaintiffs could appeal, but they won the main legal battle. Their appeal would have to be grounded on something else, probably the finding that no duty is owed to a woman whose husband had a vasectomy.
Certainly, a sad case. But from a legal perspective, a fascinating one.