Ontario doctor owes no duty of care to future child for pre-conception negligence: appellate court

A majority decision, holding that a physician in Ontario owes no duty of care to a future child for alleged negligence that occurred pre-conception, has shut down the door arguably left open by the Ontario Court of Appeal’s earlier jurisprudence.

Before the decision in Florence v. Benzaquen, 2021 ONCA 523, previous cases have suggested that a doctor can, under certain circumstances, owe a duty of care to unconceived children for pre-conception negligence, says Ryan Marinacci, an associate focusing on medical malpractice litigation at Bogoroch & Associates LLP.

Marinacci notes, however, that the Supreme Court of Canada has not yet determined whether this duty of care can exist. The dissent in the case before the Ontario Court of Appeal said that, without the highest court’s guidance, another plaintiff in a case involving a new set of facts in a different province may very well establish this duty of care.

According to Marinacci, another thing to note about this case is that the plaintiffs submitted that they would need the benefit of a full trial to be able to establish a duty of care. However, the majority disagreed and ruled in favour of the defendants on the basis of its determinations of law, without the need for evidence.

“Medical malpractice cases are always heavily fact-dependent but fundamental legal doctrines also play an important role,” says Marinacci. “Indeed, the claims by the minor plaintiffs did not make it past the motion to strike stage because the majority agreed with the motions judge that it was plain and obvious that their claim could not succeed.”

In Florence v. Benzaquen, a mother gave birth in January 2008 to triplets, who ended up having serious disabilities due to being born prematurely at 26 weeks’ gestation. Back in July 2007, the young mother started taking Serophene, a fertility drug, after trying to conceive for only a few weeks.

The mother, her husband and the minor plaintiffs, who were the appellants in this case, filed a negligence action claiming that the respondent gynecologist did not advise the mother of the risks of using the drug, including multiple fetuses and premature birth, which would have enabled her to make an informed decision. They also contended that the drug was prescribed despite it being contraindicated, considering certain factors such as the mother’s young age and the short time that she and her husband had been attempting to conceive.

The Superior Court of Justice granted the respondent doctor’s motion to strike the appellants’ claims before trial pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that they lacked viable cause of action and their claims were not recognized under the law. The lower court applied the two-part Anns test, given that the relationship in this case has not been previously recognized as triggering a duty of care.

The Court of Appeal for Ontario dismissed the appeal, ruling that the motion judge had correctly decided the motion. The majority said that the appellants failed to show a prima facie duty of care under the Anns test’s first stage because of policy considerations and a lack of proximity, considering that a doctor cannot advise an unconceived child. The majority also found that the allegation that the drug was contraindicated was relevant only to the issue of whether the doctor had breached the standard of care and not to the issue of whether she owed a duty of care.

As for the dissent, it stressed that the allegation of contraindication critically differentiated this case from the case law upon which the majority relied. It also disagreed with the motion judge’s Anns analysis, as regards both proximity and policy considerations. The case law did not conclusively settle that there could never be any circumstances in which a physician would owe a duty of care to a future child for alleged pre-conception negligence, the dissent said.

“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,” wrote Marinacci in a blog post analyzing the case. “Such a decision would of course have widespread consequences throughout Canada on this important issue.”