CITATION: Bovingdon v. Hergott, 2008 ONCA 2 |
DATE: 20080107 |
DOCKET: C46216 |
COURT OF APPEAL FOR ONTARIO |
FELDMAN, GILLESE and MACFARLAND JJ.A. |
BETWEEN: |
KARLEY BOVINGDON, KAYLIN BOVINGDON and LINDSEY BOVINGDON, infants under the age of 18 years by their Litigation Guardian, CAROLYN BOVINGDON, and TIM BOVINGDON and CAROLYN BOVINGDON, personally and MARILYN WALSH |
Respondents |
and |
PAUL A. HERGOTT |
Appellant |
Michael E. Royce, Peter J. Osborne and Jaan E. Lilles for the appellant |
Paul J. Pape and Susan Chapman for the respondent |
HEARD: June 18, 2007 |
On appeal from the judgment of Justice Gladys Pardu of the Superior Court of Justice, sitting with a jury, dated October 19, 2006. |
[1] The respondents are the parents, sister, and grandmother of twin girls who were born severely disabled, as well as the twins themselves. The appellant became the mother’s obstetrician after her first daughter was born prematurely and before she became pregnant with the twins. When the mother failed to begin ovulating after discontinuing birth control pills, the appellant prescribed the fertility drug Clomid. The Clomid was the first link in a chain of causation that led to the conception of the twins, the premature birth of the twins and the damage caused to them as a result of their premature birth.
[2] The action against the doctor was based on his failure to provide all the necessary information to allow the mother to make an informed decision whether to take Clomid: the extent of the increased risk of having twins by taking the drug, the potential for premature birth when carrying twins, and the consequent injury this might cause to them.
[3] The jury found the doctor negligent for failing to provide the necessary information to the mother. They also found on the issue of causation, that had the mother been told all the risks, she would not have taken the Clomid.
[4] Following those findings and the jury’s award of damages, the trial judge ruled, as a matter of law, that this was a case where the doctor also owed a duty of care to the twins. Because he breached that duty, they as well as their parents were entitled to recover damages. She concluded that the claim by the twins did not come within the category of action known as “wrongful life” because this was not a case where the doctor’s negligence only caused the twins to be born; in this case, the doctor’s negligence caused not only the birth of the twins, but also their damage.
[5] The trial judge further ruled that the Supreme Court of Canada’s decision in Krangle v. Brisco, [2002] 1 S.C.R. 205, which held that parents of a disabled child could not recover for the costs of care of the child once he was over the age of eighteen under statutory provisions in British Columbia, did not preclude a trier of fact in Ontario from awarding such damages.
[6] The appellant appeals on three grounds: (1) the verdict of the jury on causation was unreasonable; (2) the trial judge erred in concluding that this was not a case in the category of “wrongful life”, where the law in Canada does not recognize a cause of action; and (3) the trial judge erred in law in her interpretation and application of the Supreme Court of Canada’s decision in Krangle v. Brisco.
[7] Following the filing of the notice of appeal, the parties entered into a binding settlement agreement, approved by the trial judge on behalf of the infants, which will be effective based on the outcome of the appeal. It was also agreed and made the subject of a consent order by the Associate Chief Justice that the existence of this settlement agreement would be disclosed to the court. The agreement provides for a non-recoverable payment by the appellant of $5.1 million, which has already been paid. If the appeal is dismissed in its entirety, the appellant will pay a further $4 million. If the appeal is dismissed on the causation issue, but allowed on either of the other two issues, the payment will be reduced by $500,000 for each such issue.
[8] During her first marriage, Mrs. Bovingdon had an early miscarriage, then bore her daughter Lindsey prematurely at twenty-eight weeks gestation in 1987. Mrs. Bovingdon was in the hospital for three-and-a-half weeks before the birth, as well as for several weeks afterwards with the baby. The baby’s health was initially precarious, but she was eventually fine. Mrs. Bovingdon attributed her problems with childbirth to her tendency to become pregnant shortly after going off the birth control pill, as well as to the stress of her unhappy first marriage.
[9] Mrs. Bovingdon began to see Dr. Hergott as her obstetrician following Lindsey’s birth but while she was still married to her first husband. She divorced in 1990 and married Tim Bovingdon in 1991. The couple wanted to have children, but because of her history, Mrs. Bovingdon was concerned about any future pregnancy. Mrs. Bovingdon stopped taking birth control pills in September 1991 but her periods did not resume. Nevertheless, on three occasions in October 1991, November 1991, and January 1992, she believed she was pregnant but each time tested negative.
[10] At her January 1992 appointment with Dr. Hergott, they discussed her desire to become pregnant again in the context of her history. It was her recollection and understanding that Dr. Hergott said to her at that time that “he felt confident he could get me through a single pregnancy but twins were out of the question.” Dr. Hergott denied making that statement, although he acknowledged that they would have discussed the increased risk of premature birth in the case of twins.
[11] They also discussed why Mrs. Bovingdon was not getting her period. Dr. Hergott identified post-pill suppression, which can last for a number of months following discontinuation of the birth control pill. Mrs. Bovingdon told him that her husband would be travelling a lot in the summer and that she was hoping to have her periods regulated before he went away. Dr. Hergott told her to chart her temperature for two months and if she was still not ovulating at that time, they would talk about Clomid.
[12] Mrs. Bovingdon had her next appointment with Dr. Hergott on March 4, 1992. He looked at the temperature chart she had kept since January and observed that she was still not ovulating. He prescribed two drugs: Provera to start her periods and Clomid to induce ovulation.
[13] Mrs. Bovingdon said that Dr. Hergott did not discuss with her the risks of taking Clomid, namely the increased risk of having twins and the potential for premature birth when carrying twins, nor the risks associated with premature birth, such as cerebral palsy. She had a clear recollection that as he walked her to the door, Dr. Hergott told her with respect to Clomid that “you’re on such a low dose, you’ll never get pregnant with twins on a dose that low.” She understood that he was telling her not to be concerned.
[14] Dr.
Hergott did not have a specific recollection of what he told Mrs. Bovingdon
about Clomid nor did he note it in her chart. However, he testified as to
his usual practice when advising patients about Clomid and prescribing it.
He would hand them a two-sided leaflet from the manufacturer which stated
that nearly 10 per cent of pregnancies induced by Clomid produce twins, but
he would tell them that based on his and his colleagues’
experience, the risk of twins for patients who take Clomid was in the 3 to
5 per cent range. He would also say that the higher risk reported by the
manufacturer was based on higher doses prescribed in the
[15] In cross-examination, Mrs. Bovingdon specifically denied that Dr. Hergott showed her the leaflet that stated that 10 per cent of Clomid-induced pregnancies resulted in twins or that he said that his experience of twinning with Clomid was 3 to 5 per cent. She stated: “If I had known any risks at all were adding to my prematurity problem, I told you, I never would have gone on it.” And in re-examination she was even clearer, telling her own lawyer that she never would have taken Clomid had she known of the increased risks of having twins, and it would have made no difference whether she had been told that the risk was 3 per cent, 5 per cent, or 10 per cent.
[16] Mrs. Bovingdon became pregnant with the twins in May 1992 and they were born prematurely in December with severe disabilities. The trial judge told the jury on the issue of causation of the damage that it was accepted that the Clomid caused Mrs. Bovingdon to become pregnant with twins, the twin pregnancy caused or materially contributed to the premature birth, and the premature birth caused the damage to the twins.
[17] There was expert evidence at trial that it would be negligent for a doctor to tell a patient that in his opinion there was a 3 to 5 per cent risk of having twins with Clomid or that a lower dose would decrease the risk, when the manufacturer of the drug said the risk was 10 per cent.
[18] The jury answered the three questions on liability as follows[1]:
Question 1: Have the plaintiffs satisfied you on the balance of probabilities that Dr. Hergott failed to explain the material risks of taking Clomid to Carolyn Bovingdon in 1992, before she became pregnant?
A. Yes
Q. If your answer is Yes, in what respects was the explanation lacking?
A. Dr. Hergott misled Mrs. Bovingdon by telling her that the risk of twins was in his clinical experience 3–5 % when the brochure said the risk was 10 %.
Question 2: Has Carolyn Bovingdon satisfied you on the balance of probabilities that she would not have taken Clomid if she had known of or been advised of the material risks?
A. Yes.
Question 3: Has Carolyn Bovingdon satisfied you on the balance of probabilities that a reasonable person in her circumstances and with her history would not have taken Clomid if properly advised of the material risks?
A. Yes.
(1) Must the jury verdict on the issue of whether the appellant’s negligence caused Mrs. Bovingdon to take the Clomid be set aside as unreasonable and contrary to the evidence?
(2) Did the trial judge err in finding that the infants’ claims did
not constitute claims for “wrongful life”? If their claims are properly characterized
as claims for “wrongful life”, is there a cause of action in
(3) Did the trial judge err in finding that the Supreme Court of Canada’s decision in Krangle v. Brisco, [2002] 2 S.C.R. 477, does not preclude an Ontario court from ordering a defendant to pay damages to the parents of a disabled child for expenses to be incurred after the child is 18 years of age?
[19] Following the jury’s verdict, the appellant made a motion to the trial judge for an order dismissing the action on the basis that the verdict on the issue of causation was “perverse,” the historical terminology for a verdict that is unreasonable as contrary to the evidence.
[20] The appellant argued then, as he does on the appeal, that the jury’s answers are inconsistent with each other and with the evidence. The jury found that Dr. Hergott’s negligence consisted of misleading Mrs. Bovingdon by telling her that the risk of twins with Clomid was 3 to 5 per cent when it was really 10 per cent. Her evidence was that he did not tell her about any increased risk and that she would not have taken the Clomid had she known it would increase the risk of twins by any amount, whether it was 3, 5, or 10 per cent. However, she did take the Clomid, even though, according to the jury, Dr. Hergott told her there was a 3 to 5 per cent increased risk of having twins. As a result, the jury’s answer that Dr. Hergott’s negligent advice caused her to take the Clomid was inconsistent with their finding of negligence; consequently, their verdict on causation was unreasonable.
[21] The trial judge rejected the appellant’s submission. She reasoned that, because a jury is “free to accept or reject part of a witness’s evidence”:
Despite the witness’s evidence, this jury could have concluded that [Mrs. Bovingdon] would have accepted the smaller risk, but not the greater. The jury had the benefit of hearing of her history and circumstances, and could balance [her] desire to get pregnant with her caution arising from her past negative circumstances.
[22] The standard for appellate review of a jury verdict is a very high one. It was articulated by the Supreme Court of Canada in 1937 in McCannell v. McLean, [1937] S.C.R. 341 at 343, as follows:
the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.
[23] Consequently, it is relatively rare for a jury verdict in a civil case to be overturned on appeal. However, there are cases where an appellate court is obliged to determine that the jury’s verdict was unreasonable and unjust, based on the evidence and their findings. The appellant argues that because of the clear inconsistency between the jury’s finding that the doctor told Mrs. Bovingdon about a small risk, and her evidence that she would not have accepted any risk, their finding that his negligence caused her to take the Clomid makes this one of those rare cases where the jury’s verdict must be set aside.
[24] The appellant argues that the jury accepted his evidence that he told Mrs. Bovingdon that in his experience, the risk of having twins after taking Clomid was between 3 to 5 per cent. Therefore, they could not have accepted her evidence that he never told her that, nor her evidence that he told her that the dose he was giving her was so small that she would never get pregnant with twins. Furthermore, Mrs. Bovingdon testified that had she been told of any degree of risk, she would not have taken the Clomid. Because the jury found that she was told of a 3 to 5 per cent risk of conceiving twins with Clomid, and she did take the Clomid, on their finding, she took it in spite of being told of the 3 to 5 per cent risk of twins. Therefore, they must have disbelieved her statement that she would not have taken Clomid had she known there was any degree of risk. Consequently, one must conclude that the jury’s answers to the questions were inconsistent with their own view of the evidence, and their verdict is therefore unreasonable and unjust.
[25] The respondents say that the jury’s verdict was not unreasonable and was supported by the evidence. They make two arguments. The first is in accord with the approach taken by the trial judge, that the jury was entitled to accept part of Mrs. Bovingdon’s evidence and reject other parts. Therefore, they could have accepted that she would not have taken Clomid had she been told that the risk of having twins was 10 per cent, but rejected her evidence that she would not have taken the Clomid had she known that the risk was 3 to 5 per cent.
[26] This approach, however, constitutes an error in law. In Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, the Supreme Court confirmed the McCannell test for reviewing a jury verdict, and clarified an important issue concerning how a jury is entitled to view and assess a plaintiff’s evidence. The court stated that because the jury has the right to choose to accept only part of a witness’s evidence, the jury is entitled to discard the plaintiff’s own evidence where there is other evidence that is at variance with it. What the jury is not entitled to do is find in favour of the plaintiff by rejecting the plaintiff’s own evidence on issues that only the plaintiff could know, such as in that case, whether he was confused about a situation.
[27] In this case, the respondents argue that the jury was entitled to take the view that Mrs. Bovingdon was overstating her position when she said she was not prepared to accept any risk of twins, that they could reject her evidence to that effect and substitute their own conclusion based on their assessment of her character that her true position was that she would accept a small risk.
[28] However, a jury is not entitled to make positive findings in favour of a plaintiff based on rejecting the evidence of that plaintiff. A plaintiff’s case based on what she thought, felt, believed or did cannot improve by the jury rejecting her own evidence on those issues. That is clearly beyond the powers of a jury. A jury is obliged to act only on evidence that it hears and inferences properly drawn from such evidence; they are not entitled to speculate and make findings that are contrary to the evidence. Therefore, if the jury’s verdict was based on rejecting Mrs. Bovingdon’s evidence that she would not have taken Clomid had she known it carried a 3 to 5 per cent risk of conceiving twins, and substituting their own view that she was prepared to accept that level of risk, it must be set aside as unreasonable.
[29] However, the respondents make a second argument for upholding the jury’s verdict and reconciling its answers. The respondents’ second argument is that there was evidence from Mrs. Bovingdon that was not specifically rejected by the jury that provides support for its verdict. That evidence was that she understood that she had no risk of twins from taking Clomid. While the jury found that Dr. Hergott told Mrs. Bovingdon that the risk of twins with Clomid was 3 to 5 per cent, he did it in the context of minimizing the risk. In cross-examination, he was asked:
Q. My question to you sir: Were you trying to minimize the risk of twinning, sir, by telling her, look, it’s not really 10 percent, it’s really more like 3 and 5? That’s what you were trying to do, isn’t it?
A. In my experience, the risk was not near 10 percent, and…
[30] His effective minimizing of the risk is consistent with Mrs. Bovingdon’s understanding that he was not concerned about the risk of her having twins with Clomid, and that he would have been concerned if there was such a risk, because he had told her in January that he could not get her through a pregnancy with twins.
[31] The
jury could have accepted that he told her about the small percentage of risk
with Clomid, but also that she would not have twins on the low dose he was
giving her —or at least that it was her understanding that she would not
have twins on the low dose— and it was on that basis that she proceeded to
take the Clomid. Mrs. Bovingdon’s recollection that Dr Hergott discussed
the fact that she was getting a low dose was corroborated by Dr. Hergott’s
evidence that he would have told her that she was getting a low dose compared
to the dosage given to patients in the
[32] This submission must also be considered in the context of the trial judge’s charge to the jury, which was not only delivered orally, but which they appear to have had with them in written form in the jury room. In that charge, the trial judge set out for the jury the positions of the parties on each of the questions they had to answer. Her instructions to them on the plaintiffs’ and defendant’s positions on question #1 were as follows:
The plaintiff’s position is that your answer to this question should be “yes.” Mrs. Bovingdon remembers her conversation with Dr. Hergott, while he does not. Dr. Hergott did not make any note in the chart that he discussed the risks of taking Clomid with her, and you should therefore infer that he did not do so, especially since he did note in the chart a conversation about twins after she became pregnant. Dr. Hergott misled Mrs. Bovingdon by telling her that the risk of twins was in his clinical experience 3–5% when the brochure said the risk was 10 %. Telling her the higher figure was based on American studies using higher doses of Clomid would have left her with the impression she was on a low dose. Dr. Hergott’s evidence about his usual practice is not strong enough to support the inference that he followed his usual practice in this case. The plaintiff submits that the defendant was negligent in misstating the risks of Clomid, of failing to advise her of the option of waiting and further that if twins were conceived, there was a 50% chance of prematurity. [Emphasis added.]
The defendant’s position is that Mrs. Bovingdon knew all she needed to know to make a decision whether to take Clomid. She agreed she knew those matters that all the experts said she needed to know. The defendant says it is unlikely that Dr. Hergott told her that on a “dose that low she would never get pregnant with twins”, as that makes no sense in light of what was commonly known by gynaecologists at the time, and he would never have sent her for any early ultrasound if he had not suspected that Clomid might have caused twins. Dr. Hergott testified that his usual practice whenever he prescribed Clomid was to give the patient the brochure and point out the estimated increased risk of twins at 10 % and to also point out that in his clinical experience the risk was more in the area of 3–5 %. Doctors can and do vary in the way they explain risks to a patient, but that does not mean that they breach the standard of care. Carolyn Bovingdon always had the option of waiting to take Clomid but decided to take it after being advised of the added risks. The defendant’s position is that your answer to question one should be “no.”
[33] It appears that the jury accepted what the judge told them was the plaintiff’s position on question #1, even though the 3 to 5 per cent risk of twins was not consistent, when taken literally, with her evidence that if she had been told there was any risk, she would not have taken the Clomid.
[34] In my view, the respondents’ second approach is available on the record and is sufficient to support the jury’s verdict. It was open to the jury to infer from Mrs. Bovingdon’s evidence, taken together with the fact that they accepted that Dr. Hergott told her that the risk of twins with Clomid was 3 to 5 per cent, that she understood that he was minimizing that risk down to zero. That is, the jury was entitled to find that she understood that she was on such a low dose that she would not conceive twins and he was not concerned about the risk, and that had she understood that there was a real risk of conceiving twins with Clomid, she would not have taken it.
[35] Based on this view of the evidence, I conclude that the jury’s verdict was not so plainly unreasonable or unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. I would not give effect to this ground of appeal.
[36] The
appellant did not challenge the right of the mother to sue him for damages
for the “wrongful birth” of the children, if he was found to be negligent
and in breach of the duty of care he owed to her. However, he challenged
the right of the twins to claim damages from him to compensate them for being
born, that is, for “wrongful life”. He raised this issue twice with the trial
judge, once before the trial began with the jury and again following receipt
of the jury’s verdict. Before the trial, the appellant moved under Rule 21
of the Rules of Civil Procedure for a ruling that, as a matter of law, it
was plain and obvious that the claim by the children was a claim for “wrongful
life,” which courts in
[37] The common law world has struggled for the past several decades with the debate over whether a child born with defects or injuries suffered in utero or upon conception can sue a doctor for negligence.[2] In deciding whether to recognize a “wrongful life” claim, the key question is, if a child would not have been born at all without the doctor’s negligence, can such a child sue the doctor for the value of the difference between a life burdened with physical or mental defects and no life at all? How can the child be compensated for being born? How can a court give damages that measure the value of no life versus a damaged life? And from a metaphysical point of view, does it make sense to allow such an action, given that if the child had not been born, he or she would not have been able to bring the action at all?
[38] Many
courts, such as the English Court of Appeal in McKay v. Essex Area
Health Authority, [1982] 1 QB 1166, originally rejected wrongful life
claims on the basis that attempting to compensate a person for being alive
is contrary to public policy. However, in other jurisdictions, particularly
some American states, courts have concluded that abstract philosophical difficulties
cannot justify denying compensation to a child born with disabilities in
part because of a doctor’s negligence, and whose survival and support will
require significant funds throughout his or her life. See, for example, Turpin
v. Sortini, 31
[39] The leading Canadian case on the issue is the Manitoba Court of Appeal decision in Lacroix (Litigation Guardian of) v. Dominique (2000), 202 D.L.R. (4th) 121, where the court divided children’s claims into two categories, one that allows a valid claim against a doctor, the other that does not. Only in the first category, where the doctor’s negligence caused the damage to the child, will the doctor be liable to the child.
[40] In Lacroix, before trying to conceive a child, a mother with epilepsy consulted her doctor about the possible effects of her epilepsy medication on a foetus. The trial judge accepted the parents’ evidence that the doctor did not warn them about the risks, and that had they been warned, they would not have had children. Although their first child was unaffected, their second child suffered from retardation caused by the epilepsy drug. Subject to a limitation defence, the parents had a claim against the doctor for damages for “wrongful birth”. Because of the doctor’s negligence in failing to advise them about the risks of the drug harming an unborn child, the parents conceived and the mother bore the second child. The doctor breached his duty to the parents causing them to suffer damage. The parents could be compensated for the cost associated with the care and treatment of the disabled child.
[41] Turning to the child’s claim, the Manitoba Court of Appeal divided cases where a child is born with disabilities into two categories:
(i) cases in which the abnormalities have been caused by the wrongful act or omission of another; and
(ii) cases in which, but for the wrongful act or omission, the child would not have been born at all. (para. 24)
[42] In cases in the first category, where the defendant’s wrongful act caused the harm, the child has a valid claim. However, in cases in the second category, where the defendant’s negligence did not cause the harm to the child but only caused the parents either to proceed to conceive the child, or to bear the child rather than abort, that is an action for wrongful life for which there is no claim in law.
[43] As
an example of the first category, the court referred to the British Columbia
Court of Appeal decision in Cherry (Guardian Ad Litem) v. Borsman (1992),
94 D.L.R. (4th) 487. There the doctor negligently injured the foetus while
unsuccessfully attempting to perform an abortion. The trial judge found that
the doctor owed a duty of care to the mother to perform the abortion with
due care, but he also owed a duty to the infant not to injure her in the
process. Of course, an unborn child has no legal rights. However, upon live
birth the child can assert a claim for injury suffered before birth: see Dehler
v. Ottawa Civic Hospital (1979), 101 D.L.R. (3d) 686, 695–97 (Ont. H.C.J.),
aff’d 117 D.L.R. (3d) 512n. (Ont.
[44] In Cherry, the doctor argued in the court of appeal that a dual duty in the case of an abortion would put him in an impossible conflict of interest position: his duty to the mother was to abort the child, while the duty to the child was not to harm her. He said that because his duty was to his patient, the mother, he could have no legal proximity to the child. The court disagreed and stated at page 504:
We think the law would be wanting and badly flawed if it found itself in the position of having to deny any remedy to this infant plaintiff because of what at first glance may appear to be established principles of negligence. In our opinion the principles of negligence do not stand in the way of recovery for this plaintiff. We think that a surgeon on performing an abortion in a case such as this owes a duty of care to the mother to perform his task properly but at the same time owes a duty of care to the foetus not to harm it if he should fail in meeting the duty of care he owes to the mother.
[45] The Lacroix court identified its decision in Webster v. Chapman, [1998] 4 W.W.R. 335, as another example of a case in the first category. In Webster, the mother had been prescribed the drug Coumadin to treat pelvic thrombosis. The doctor allowed her to remain on the drug once he knew she was pregnant, and he failed to consult a specialist to obtain advice about the effect of the drug on a foetus. The drug should have been discontinued immediately. It caused the child to be born with congenital injuries. In Webster, the doctor was held liable to the infant.
[46] Cases in the second category typically arise when a doctor fails to warn the mother about the risk of giving birth to a child with disabilities. For example, where there are factors such as the risk of serious hereditary diseases, parents who are warned may decide not to conceive, or where parents are advised of an adverse genetic test result or an in utero infection such as rubella, they may choose to abort. In those cases, the doctor’s negligence has not caused the injury. Rather, it has caused or allowed the child to be born, because had the parents been informed of the risk, they would have refrained from conception or discontinued the pregnancy. See, for example, Mickle v. Salvation Army Grace Hospital (1998), 166 D.L.R. (4th) 743 (Ont. Gen. Div.) (failure to detect congenital limb deformities in foetus during ultrasound examination); Jones (Guardian ad litem of) v. Rostvig (1999), 44 C.C.L.T. (2d) 313 (B.C.S.C.) (failure to prescribe amniocentesis and other pre-natal tests that would have indicated Down’s Syndrome in foetus); McKay, supra (failure to diagnose in utero rubella); Becker v. Schwartz, 386 N.E. 2d 807 (N.Y. 1978) (failure to provide advice concerning availability of amniocentesis to test for Down’s Syndrome in foetus).
[47] In
this second category of cases, the child’s claim is not for the harm but
for being born (with a disability). This claim has been labelled “wrongful
life”. The Lacroix court agreed with courts in
[48] Having classified infants’ claims into two categories, the Manitoba Court of Appeal had to decide into which category the Lacroix case fell. The problem was that on the facts, the case could arguably fall into either category. Because it was the epilepsy drug that caused the harm to the child, on one analysis the doctor’s negligence caused the harm because he prescribed the drug without warning the parents about its risks. However, the doctor’s negligent act did not consist in prescribing the drug, but rather in failing to advise the mother of the risks of getting pregnant while on it. The evidence was that had she been warned of the risks, the mother would have continued taking the drug, which she needed, but she would have avoided pregnancy. The court recognized that the doctor owed the mother a duty to prescribe the epilepsy medication she needed. Furthermore, the risk to a foetus of the mother suffering a seizure while pregnant was greater than the risk of damage that the drug posed to the foetus.
[49] The court concluded that in this situation, unlike in Cherry, to impose on the doctor a duty of care to the child would create a conflict with the doctor’s duty to the mother to prescribe a drug that she needed, stating at para. 40:
it is impossible, in my view, to hold that the doctor owed a duty to the future child not to prescribe a medication for the mother which, though potentially harmful to the child, was required both for the mother’s health and to avoid the risk to a fetus of the mother having a seizure.
[50] The court therefore held that the case fell into the second category: but for the doctor’s negligence in failing to warn the mother of the risks, the child would not have been born. The negligence was not in prescribing the drug, but in failing to provide the information that the drug was contraindicated if the mother were to become pregnant. Because the case fell into the second category, the court held that it was a case of “wrongful life” and there was no cause of action.
[51] In assessing Dr. Hergott’s argument that the twins had no cause of action against him for wrongful life, the trial judge addressed the issue based on the two categories in Lacroix. Was this a case where the damage to the children was caused by the doctor’s negligence, or was it a case where the doctor’s negligence did not cause the damage but caused or permitted the children to be born? To decide the question, the trial judge focused on the causation concession that the appellant had made for the jury—that the Clomid caused the twinning, the twinning caused the prematurity, and the prematurity caused the damage to the children. She reasoned that, therefore, the Clomid caused the damage and since the doctor had prescribed the Clomid without warning the mother of the risks, the doctor had thereby caused the harm to the children. She concluded that the case was a category one case, and therefore not an action for wrongful life.
[52] In coming to this conclusion, the trial judge had to distinguish the result in Lacroix. She was satisfied that the facts in this case distinguished it from Lacroix because there the mother required the medication for her epilepsy. Furthermore, she stated that Lacroix should be narrowly interpreted. The Lacroix court had agreed with McKay, supra, that wrongful life claims should be barred on policy grounds. The trial judge disagreed with the English Court of Appeal’s policy concern in McKay that if such claims were not barred, physicians would be encouraged to recommend abortion in order to avoid the risk that a child might be born impaired and that they would thereby be found liable for negligence. She rejected this concern as unfounded, because a woman has the autonomous right to make her own decision about abortion.
[53] It is clearly very difficult to articulate a coherent theory of liability of a doctor to an unborn child that is based on a valid legal structure and satisfactorily addresses all the policy concerns that have troubled the courts and academics that have previously considered this issue.
[54] For example, the whole concept of paying compensation to someone born disabled or to their parents is seen by some of those who advocate for the disabled as a negative development that reinforces stereotypical reactions to persons with disabilities. In her article, “The Disabling Impact of Wrongful Birth and Wrongful Life Actions” (2005) 40 Harv. C.R.-C.L.L. Rev. 141 at 195, Professor Wendy F. Hensel concludes that “[o]nly by viewing wrongful birth and life actions as a collective threat facing all individuals with disabilities can tort law avoid endorsing such disabling and disturbing messages.” In contrast, other academics and courts take the view that where a child is born with damage resulting from medical negligence, the courts should not be concerned with the conceptual difficulties presented by the “non-existence” issue or with offending those who speak on behalf of persons with disabilities, but should instead focus on achieving full compensation to the family through permitting a combination of actions by the parents and the child: see Dean Stretton, “The Birth Torts: Damages for Wrongful Birth and Wrongful Life” [2005] Deakin Law Review 16 (Australia).
[55] I do not believe that the two-category approach in Lacroix provides a coherent theory that can assist courts in making the difficult decision of when a child should be able to recover damages from a doctor for being born with disabilities. The facts in Lacroix demonstrate the problem.
[56] The second category is fairly clear. It only includes cases where the damage to the child was not caused in any way by the doctor’s negligence. The doctor’s failure in these cases consists of improperly performing tests or failing to advise parents of the availability or the results of the tests, thereby preventing the parents from choosing to avoid conceiving a child who could be born with disabilities or the mother from terminating a pregnancy where damage has already occurred.
[57] Cases in the first category, however, are much more difficult to compartmentalize. In those cases, the doctor may have caused or contributed to the damage by prescribing a contraindicated drug or by physically damaging the foetus in utero. Yet, as in Cherry, the doctor’s negligence could also have caused or allowed the child to be born.
[58] That was exactly what occurred in Lacroix. The doctor’s negligence caused the damage and the birth. However, the court effectively overlooked the damage and placed the case in category two. In my view, with respect, Lacroix fits much more easily into category one than does the case at bar. In Lacroix, the epilepsy drug actually harmed the child. In this case, the Clomid had no pharmacological effect on the children. Dr. Hergott did not cause the damage to the children. Rather, by failing to give Mrs. Bovingdon all the information she needed to decide whether to take the drug to augment her fertility, he caused or contributed to the birth of the twins.
[59] Although the Clomid was the first step in the chain of causation that led to the damage, the appellant’s negligence did not cause the damage. This was because prescribing Clomid to Mrs. Bovingdon was not contraindicated and was not in itself a negligent act. The preponderance of expert evidence at trial established that prescribing Clomid to a woman in Mrs. Bovingdon’s circumstances met the standard of care, as long as Mrs. Bovingdon understood the risks of twinning, prematurity, and consequent possible damage. It was her choice to make, although it had to be an informed choice.
[60] In my view, because the doctor did not cause the harm to the twins, the trial judge erred by finding that this case fell into the first category rather than the second category described by Lacroix. The fact that the mother in Lacroix needed the epilepsy drug does not change the analysis, nor does it distinguish the two cases, especially because the epilepsy drug actually harmed the child in Lacroix. Both cases involved giving the mother full information so that she could choose the course of action she wished to take.
[61] As I stated above, I do not find the two categories described in Lacroix particularly useful as a basis for analyzing these claims. I prefer to approach the issue not by using categories such as those set down by Lacroix, but rather through the normal analysis of tort liability: duty of care, standard of care, breach, and damage. The real question in each case is, did the doctor owe a duty of care to the future child or children under the circumstances? If so, then it becomes appropriate to consider the standard of care, whether the doctor breached the duty, and the correct measure of damages.
[62] The respondents submit that the doctor owed the same duty to the future children that he owed to the mother—the duty to properly inform their mother of the risks associated with Clomid prior to prescribing it to her while she was trying to become pregnant. In their factum, the respondents say that the children’s “right was to have a drug-free conception, with a reduced risk of disability, rather than a right not to be born.” The trial judge also characterized the appellant as owing a duty to the foetus that is co-extensive with his duty to the mother, even though he could not have disclosed risks to a foetus.
[63] However, when one analyzes this characterization of the duty, it becomes apparent that it does not bear scrutiny. Mrs. Bovingdon came to the appellant in 1992 because she and her new husband wanted to have children, but she could not become pregnant because she was not ovulating. She was also concerned about having a premature birth because she had previously had a miscarriage and a premature pregnancy. The appellant’s duty to his patient, the mother, was to help her to become pregnant if possible and to provide her with all the information she needed to decide whether to take fertility medication to assist with the process.
[64] However, once she had the information, it was entirely her choice whether to take the Clomid. She was not obliged to act in the best interests of a future child or children or to make the choice they would want. She was not acting as their surrogate making a choice on their behalf. She was entitled to choose to take the risk of having twins. This is similar to a mother’s right to choose whether to have an abortion. That is why the Supreme Court protected mothers from any tort liability to an unborn child: see Dobson v. Dobson, [1999] 2 S.C.R. 753. As Cory J. stated on behalf of the majority in Dobson:
[I]t is the policy concerns, so central to this issue, which should determine whether tort liability should be imposed on mothers for prenatal negligence. With the greatest respect … the judgments below failed to appreciate fully the extensive intrusion into the privacy and autonomy rights of women that would be required by the imposition of tort liability on mothers for prenatal negligence. Such a rule of law would have profound implications and consequences for all Canadian women who are or may become pregnant.
[65] The right of a mother to choose whether to take Clomid is consistent with the standard of care imposed on the doctor in this case, which was to provide the information his patient needed to make an informed choice, rather than to make the choice for her.
[66] Nor was the mother obliged to make the choice that a hypothetical reasonable person would have made. One of the questions the jury is asked to answer in an action against a doctor for failing to provide the information required for informed consent is whether a reasonable person would have made the choice the plaintiff claims he or she would have made with the benefit of full information. In Reibl v. Hughes, [1980] 2 S.C.R. 880, (confirmed in Arndt v. Smith, [1997] 2 S.C.R. 539), the Supreme Court held that a court is required to apply a modified objective test of the plaintiff’s intent in an action against a doctor for failure to provide informed consent. Its purpose is to test the subjective assertion of the plaintiff, made after the fact, that she would have made a different choice had she been properly informed. Therefore, when a jury finds, as it did in this case, that a reasonable person would not have taken the drug if properly advised, that finding merely applies the modified objective test, and in effect affirms the reasonableness of the plaintiff’s evidence concerning what she says she would have done if she had been appropriately informed. It is not a finding that the only reasonable choice the plaintiff could have made if properly informed would have been to refuse the drug.
[67] In fact, the evidence in this case was that most women do elect to take Clomid when fully informed. When the Bovingdons learned that Mrs. Bovingdon was pregnant with twins, Dr. Hergott reassured her and discussed how she should take special precautions during her pregnancy including rest in order to bear the twins as safely as possible. There was no issue in this case of abortion.
[68] Because the doctor’s duty with this type of drug is only to provide information sufficient to allow the mother to make an informed choice, it cannot be said that the children have a right to a drug-free birth. Nor can the doctor owe a duty to the children that is co-extensive with his duty to the mother. To frame the duty in that way is to overlook the fact, as discussed above, that the choice is the mother’s; she is entitled to choose to take the drug and risk conceiving twins without considering their interests. If she does, the children have no complaint against her or the doctor.
[69] In contrast, where a drug is contraindicated for a pregnant woman, the standard of care for the doctor may be either not to prescribe the drug or to ensure that the woman is taking all appropriate precautions to prevent pregnancy. That was the standard in Paxton v. Ramji, [2006] O.J. No. 1179 (S.C.J.), where Accutane could be prescribed for acne, but if the patient was a woman, then only if she was not going to become pregnant.[3]
[70] I conclude that in this case, the appellant had no duty of care to the future children not to cause them harm in prescribing Clomid to the mother. The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth.
[71] I also believe that a policy analysis supports the conclusion that where the standard of care requires a doctor to give a woman the information to make an informed decision about taking a drug or undergoing a procedure, the doctor cannot owe a co-extensive duty to a future child. Where the standard of care on the doctor is to ensure that the mother’s decision is an informed one, a co-extensive duty of care to a future child would create a potential conflict of interest with the duty to the mother. If future children have a right to a drug-free birth, as the respondents suggest, then doctors might decide to deny women the choice of taking Clomid on the basis that providing such choice might be a breach of the doctor’s duty to the unborn children. In my view, the policy of ensuring that women’s choice of treatment be preserved supports the conclusion that the doctor owed no legal duty to the unborn children in this case.[4]
[72] The decision that the twins do not have a cause of action against the appellant in this case is narrowly framed based on a finding that there was no duty of care owed to the future children and not on whether the claim is properly categorized as a claim for “wrongful life”. Because I have concluded that there was no duty of care and therefore no cause of action by the twins, it is not necessary for me to decide whether and in what circumstances the courts of this province may recognize a cause of action for “wrongful life.”
[73] Although I have concluded, contrary to the finding of the trial judge, that the children’s claim against the doctor would have fallen into the category of claims that the Lacroix court designated as “wrongful life,” I do not believe that the categories described in that decision are comprehensive or distinctive enough to be used as the mechanism for determining whether a cause of action exists. Furthermore, it is undecided whether the courts of this province would necessarily dismiss every claim for “wrongful life”. A proper consideration of this question would require the court to address the policy issue of whether such claims should exist in our law. In this case, the issue is obviated because I have found that although the doctor breached his duty of care to the mother to give her full information to allow her to make an informed decision whether to take Clomid, he owed no duty of care to the unborn children when prescribing Clomid to a woman who wished to become pregnant.
[74] As the appellant did not owe a future child or children a duty of care in the circumstances of this case, there could be no breach of duty to the twins and no right for them to claim damages. Consequently, I would allow the appeal on the second issue.
[75] Much of the debate about whether, as a matter of public policy, the courts should recognize a claim by children for wrongful life is actuated by the problem that in some jurisdictions the parents can recover damages for wrongful birth, including the cost of special care needs of the children, but only until the age of majority. After that, only the child can make the claim. If parents are able to care for the disabled child beyond the age of majority and if a proper measure of damages in a parent’s wrongful birth claim may include the cost of caring for the child beyond the age of eighteen, such an award partially mitigates the practical concern of those who oppose denying a child a right of recovery for wrongful life.
[76] The Supreme Court of Canada dealt with the issue in the case of Krangle v. Brisco, supra. The parents of a child born with Down’s syndrome sued the doctor who had looked after the mother during her pregnancy for failing to advise the parents that there was a test that would have shown that their child would be born with the syndrome. Had the mother learned this information, she would have had an abortion. It was agreed that the doctor was at fault. It was also conceded that the child himself had no cause of action. The parents were awarded the costs of caring for the child up to age nineteen, including the cost of in-home services, special education, speech therapy and equipment. The narrow issue was whether the parents were entitled to recover as part of their damage award, the same costs of caring for the child once he reached the age of majority.
[77] The trial judge declined to award similar damages for the child’s care after age nineteen because the parents did not plan to continue to look after the child once he turned nineteen. It was agreed that at that age, it would be in the child’s best interests for him to move into a publicly funded adult group home. However, the trial judge did make a contingency award of $80,000 to cover the 5 per cent chance that public benefits would no longer be available when the child reached nineteen. After the trial, the Family Relations Act, R.S.B.C. 1996, c. 128, ss. 87–100, was amended to provide that parents are responsible for supporting children, including adults over age nineteen, who are unable to withdraw from their parents’ charge or to obtain the necessities of life because of, inter alia, disability. As a result of this legislative change, the parents appealed the decision to the British Columbia Court of Appeal, based on the concern that the state might look to them in the future for reimbursement for the cost of the group home. The majority of the court of appeal agreed with the parents. The doctor appealed to the Supreme Court of Canada.
[78] The Supreme Court described the issue before it as whether the parents were entitled to damages for the cost of the care of their child as an adult, based on the evidence at trial of whether they would be incurring that cost, and on their liability for those costs under the amended Family Relations Act. The court explained that because future damages must be quantified once and for all, the court must determine
what is required to indemnify the Krangles for any costs they may incur for [the child’s] adult care. The Krangles are entitled to be reimbursed for losses they may reasonably be expected to incur on the basis of the evidence and the law, plus an award for the contingency that the projections may not be realized. (para. 22)
[79] All of the experts at trial agreed that a publicly funded adult group home would offer the child the greatest sense of independence and well-being and the best environment for his development, and it would therefore be in his best interests to live there once he turned nineteen. The question was whether the amendment to the Family Relations Act would make the Krangles responsible for the cost of the group home.
[80] The court found that by living in a group home, the child would be independent of his parents and therefore out of their “charge”. As a result, the parents would still have no legal responsibility under the amended Act to support the child as an adult and therefore no obligation to reimburse the state for the cost of the group home. The court agreed with the trial judge that the parents therefore would not incur costs for the child’s adult care, subject to the 5 per cent contingency amount awarded to cover the possibility that the publicly funded group home would not be available in the future.
[81] The appellant argued at trial that the effect of the Krangle case is that the Bovingdons are not entitled to recover as part of their damages the cost of caring for the twins once they reach age eighteen in Ontario, because at that time the parents have no legal obligation to support the children. The trial judge rejected this submission. She interpreted Krangle as turning on its own facts and the application of the B.C. Family Relations Act.
[82] The facts in this case are quite different from those in Krangle. The twins are profoundly disabled, and although the parents will not be legally responsible for their support after age eighteen, they do not intend to place the twins in a group home. A group home could only provide for their physical care but not their emotional well-being. Nor would the group home be able to give them intellectual stimulation and pleasure. The parents’ assertion that it was in the children’s best interests to remain with them beyond age eighteen was not challenged at the trial. The costs the parents are claiming are for extraordinary expenses for nursing care, medications and supplies connected with the children’s disabilities for the balance of their lives, projected to be a further seventeen and forty-four years respectively, not for basic sustenance.
[83] The trial judge rejected the appellant’s submission that Krangle stands for the proposition that the absence of a legal obligation on the parents to support the children after age eighteen is a bar to recovery. I agree with the trial judge. In Krangle, the child was not going to be supported by the parents once he was an adult. Therefore, they would not be incurring that cost. This was not because they were not entitled to incur the cost had they wished but because the group home was in the child’s best interest. The issue in that case was whether the parents would be obliged to reimburse the state for the cost of the child’s care, which turned on their legal obligation to provide support. If they had been responsible to reimburse the state, they would be seen as likely to incur the cost of future care and the court would have awarded damages to cover this cost.
[84] In this case, the evidence is that the parents will be incurring the cost of the extraordinary expenses needed for the care of the twins for the rest of their lives. The trial judge was careful to ensure that the jury would not make an award that would give the parents any “double recovery” for amounts that they may be able to claim from the province for basic care costs for the twins in the future.
[85] I agree with the trial judge that according to Krangle, the parents were entitled to have the jury determine on the evidence what losses they would reasonably be likely to incur for the cost of the care of the twins beyond the age of majority, whether or not they were legally obliged to continue to care for the twins after that time, and to award those costs as part of their damages in this case. I would therefore dismiss the third ground of appeal.
[86] In the result, I would dismiss the appeal on issues 1 and 3 and allow the appeal on issue 2. The effect of this ruling, in accordance with the settlement agreement reached by the parties, is that the respondents will receive a further $3.5 million. As it was also part of the settlement agreement that neither side would seek costs of the appeal, there will be no order as to costs of the appeal.
RELEASED: “JAN -7 2008” “KNF”
“K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
“I agree J. MacFarland J.A.”
[1] At the trial, the jury was also required to decide whether the action was barred by the passage of the limitation period. Although the twins were born in December, 1992, the action was not commenced until March 23, 2004. The jury was asked a fourth question dealing with the limitation period:
Q. Has Carolyn Bovingdon satisfied you on the balance of probabilities that she did not know the facts and should not be expected to know the facts upon which she bases her claim against Dr. Hergott, before March 23, 2003?
A. Yes.
[2] In
Canada, see, for example: Mickle v. Salvation Army Grace Hospital (1988),
166 D.L.R. (4th) 743 (Ont. Gen. Div.); Lacroix (Litigation Guardian of)
v. Dominique (2000), 202 D.L.R. (4th) 121; Arndt v. Smith, [1994]
8 W.W.R. 568 (B.C.S.C.), overturned on another issue [1995] 2 SCR 539; Jones
(Guardian ad litem of) v. Rostig (1999), 44 C.C.L.T. (2d) 312 (B.C.S.C.); Dehler
v.
[3] As the appeal from this decision is to be argued in this Court in early 2008, I make no legal conclusions on any issue arising in that case.
[4] I need not decide whether I agree with the British Columbia Court of Appeal decision in Cherry and its policy analysis, as the facts in this case are very different.