Birth Trauma and the Duty of Care

Presented at the OTLA 2010 Spring Conference on May 27 & 28, 2010 in Toronto

Posted April 27, 2010

Until the Ontario Court of Appeal decision in Paxton v. Ramji all parties to a negligence claim arising out of birth trauma would have assumed that physicians and nurses owe a duty of care to a fetus subsequently born alive. They would have proceeded to address whether the standard of care had been breached, whether causation was satisfied and then assessed the damages. Where negligent conduct was established, damages would be awarded which would have included the child’s personal claims for care, loss of income and nonpecuniary general damages, among other claims.

In Paxton, Ms. Paxton sought treatment from Dr. Ramji, her family doctor, for acne. Believing that Ms. Paxton would not become pregnant, the doctor prescribed Accutane, a teratogenic drug. Importantly, Ms. Paxton’s husband had a vasectomy some 4 ½ years earlier. Despite this, Dr. Ramji did have a pregnancy test performed on Ms. Paxton before prescribing the drug. The test was negative. Unfortunately, after taking the drug it appears that the vasectomy failed and Ms. Paxton become pregnant, subsequently giving birth to a disabled child. The case was dismissed at trial, the trial judge having found that the doctor had met the applicable standard of care. The plaintiffs appealed.

Unfortunately for the law of negligence in birth trauma cases, and the law of negligence more generally, the Court of Appeal decided to dispose of the appeal after a more fundamental analysis of whether there was any duty of care owed by the physician to the fetus which could be breached. The Court of Appeal was not content to rely on the trial judge’s finding, having posited a duty of care, that the standard of care had been met.

Paper: Birth Trauma and the Duty of Care