This is the eighth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. Each article will focus on specific injuries and will highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion. By comparing cases involving similar injuries, we hope to illustrate how the plaintiff succeeded, and, when they did not, strategies that may have been available to improve their chance of success.
This article will focus on wrongful birth cases, including specific issues relating to causation in such claims and the inconsistent approaches taken by courts in determining damages for the cost of care for children born due to medical negligence, either with or without disabilities.
Introduction
Wrongful birth claims involve allegations of negligence by a parent against a medical practitioner for the birth of a child who would not otherwise have been born. Wrongful birth cases typically involve the unwanted birth of a child with disabilities following the defendant’s negligent performance of a medical procedure or provision of medical advice (e.g. failed abortion, failure to offer genetic or other prenatal tests, failure to properly perform or interpret prenatal tests, or failure to inform the patient of the risk of fetal abnormality associated with the results of the prenatal testing).
A wrongful pregnancy claim specifically concerns plaintiff parents who never wanted to be pregnant in the first place, but became pregnant with an unplanned child with or without disabilities as a result of the defendant medical practitioner’s negligence (e.g. failed sterilization, negligence in prescribing contraceptives).1 For the purposes of this article, we use the term wrongful birth to describe both wrongful birth and wrongful pregnancy claims.
Wrongful life claims are similar to wrongful birth claims, with the difference being that they are brought by the child rather than the parents. In such cases, the child’s claim is that but for the negligence of the defendant, they would not have been born at all. Wrongful life has been rejected as a cause of action by Canadian courts for various reasons, including the fact that as a matter of public policy, any existence should be viewed as preferrable to no existence at all.2
Proving a breach of the standard of care in wrongful birth cases is similar to that of other medical negligence cases, but there are certain unique causation issues that require counsel to gather extensive evidence about the plaintiff’s particular circumstances. And although wrongful birth lawsuits are not new in Canada, with cases dating back to the 1970’s, there is still uncertainty and controversy around the assessment of damages based on each court’s characterization of the loss to the plaintiff parent. Over the years, courts have denied or limited an award for the cost of care based on inconsistent approaches. In particular, the damage limits for children born without disabilities are so exceptional that no such limit is employed in any other area of medical negligence.
