A Duty of Care to a Non-Existent Person?


Proving that a doctor owes a duty of care to their patient is a fundamental part of a medical malpractice case. Where there is no duty of care, there can be no liability for damages.

Establishing that a doctor who is providing medical treatment to their patient has a duty of care to that person seems deceptively simple. But what about a future patient who does not yet exist?

A recent case before the Ontario Court of Appeal has prompted much discussion and debate over whether a fertility doctor owes a duty of care to both the person being treated as as well as the future offspring if the fertility treatment causes them injury.

In this blog post, I explore some of the complex legal and ethical issues of this case.

Triplets born with cerebral palsy

In 2008, 26-year-old Dana Florence (now Dana Geall) was prescribed an oral hormone called Serophene by gynaecologist Dr. Susan Benzaquen after trying unsuccessfully to become pregnant for some months. The medication, which boosts ovulation, and may result in a higher risk of multiple births. Six months after taking the medication, Brody, Cole and Taylor Florence were born.

The Florence triplets, born prematurely, were so small they could fit into Geall’s palm. Two years after their birth they were all diagnosed with cerebral palsy. Geall notes her children need significant attendant care for daily routines and physiotherapy. One of the children is non-verbal, another is profoundly deaf, and they have had to undergo surgeries as a result of their condition.

A duty of care to the mother, but not the children

The triplets’ parents filed a lawsuit against Dr. Benzaquen in 2011 alleging the risk of multiple births and premature births due to the medication was not communicated to Geall and had she known of the risk she would not have taken the medication. The triplets were added to the suit, alleging the doctor knew or should have known that the medication could not only cause harm to the mother, but also her future children.

Ontario Superior Court justice Darla Wilson accepted for the purpose of the motion that the fertility medication was “unreasonable and unnecessary” and information about the risks were not properly communicated. Dana’s personal claim of negligence could proceed.

Justice Wilson did not permit the triplets’ claim to proceed since they were not patients of the doctor (having not been conceived yet) and the medication itself does not cause abnormalities to a fetus. Moreover, the claim amounted to a “wrongful life” argument that had been rejected by many other courts, including in one case where the same medication was prescribed. An appeal was dismissed by the Ontario Court of Appeal, with one justice dissenting. Recently, the Supreme Court of Canada declined to hear the appeal.

The issues

The defendant, Dr. Benazquen, argued that the triplets couldn’t be owed a duty of care because they were not her patients (as they did not exist when the alleged medical negligence occurred). Although children who sustained a birth injury in the womb due to medical malpractice can sue the doctors and nurses delivering them, law firms dealing with fertility cases have suggested that giving rights to an unconceived child could open significant conflict with a woman’s rights; particularly the right to abortion.

In contrast, the plaintiffs argued that whether or not the children were already conceived, the fact that a doctor prescribed contraindicated fertility medication, which carried an increased risk of multiple births, certainly made their claims foreseeable. The effect of the medical malpractice, prescribing an unnecessary medication, was the same on them as on their mother.

Unfortunately, the majority of the Ontario Court of Appeal were unequivocal in their determination of this matter. They slammed the door shut for these cases, and stated “it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception”. While, it was certainly open to the court to determine that a physician does not owe a duty to care to future children when prescribing fertility drugs to the mother, I would argue that that this statement of the law goes beyond the facts of the case before the court.

A perfect example of why I believe the majority went too far, lies in the dissenting opinion of Fairburn A.C.J.O. She gave the example of an Australian case where a physician failed to diagnose a patient’s syphilis, which caused physical and developmental disabilities for her future child. In this case, the mother and child’s interest were aligned. The most serious consequence of the physician’s failure were to the child. It seems to me, firmly closing the door on such a wide category of claims, including the one described above, regardless of the facts, may lead to a miscarriage of justice.

Other thoughts, life… with disability

One of the things that can be so heart-wrenching about these cases is the language used by observers as wrongful life claims are made. In an Alberta Law Review article titled “Prenatal Harm and the Duty of Care,” Erin L. Nelson wrote: “These cases are generally viewed as assertions by the child (or their litigation guardians) that he or she would have been better off having not been born at all.”

As media have reported on this case, the triplets are beloved by their parents and although they have severe disabilities, they are using their abilities to express themselves in a positive way. While their mother marvels at how they are able to “roll with the punches,” it is clear they experience great pain and suffering and experience significant challenges.

In cases like these, the idea that the litigant “would have been better off not having been born” does not seem to adequately capture what they are actually seeking: compensation so that they can live their best life possible. The question remains, how can these people be helped while balancing and protecting the rights of others? According to at least one of the justices who heard this case, it is a question still worth considering in a future case.

At Gluckstein Lawyers, we know there are people who are deserving of financial assistance yet may not have access to legal recourse. As a part of our commitment to full-circle care, we look for any and all ways we can help people in our communities.. This includes our long-standing support of and fundraising for organizations that promote disability rights groups and foster community-building among people who have suffered great loss. We have also authored a guide on accessing community resources for parents raising a child with a disability.

To learn more about our advocacy and client support, contact Gluckstein Lawyers today for a free consultation.


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