Bovingdon et al. v. Hergott, (2008) 233 O.A.C. 84 (CA)

• Judge: Feldman, Gillese and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 18, 2007
• Jurisdiction: Ontario
• Citations: (2008), 233 O.A.C. 84 (CA);2008 ONCA 2

Bovingdon v. Hergott (2008), 233 O.A.C. 84 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.043

Karley Bovingdon, Kaylin Bovingdon and Lindsey Bovingdon, infants under the age of 18 years by their Litigation Guardian, Carolyn Bovingdon and Tim Bovington and Carolyn Bovington, personally and Marilyn Walsh (respondents) v. Paul A. Hergott (appellant)

(C46216; 2008 ONCA 2)

Indexed As: Bovingdon et al. v. Hergott

Ontario Court of Appeal

Feldman, Gillese and MacFarland, JJ.A.

January 7, 2008.

Summary:

A doctor/obstetrician prescribed a fertility drug (Clomid) to a patient who failed to begin ovulating after taking birth control pills. The patient became pregnant with twins who were born prematurely and who suffered damage as a result of their premature birth. The patient and her husband, the twins' sister, grandmother and the twins themselves sued the doctor. A jury found the doctor negligent for failing to provide the necessary information to the patient (mother). The jury also found on the issue of causation that had the mother been told all the risks, she would not have taken the Clomid.

The Ontario Superior Court, following the jury's findings and award of damages, in a decision reported [2006] O.T.C. 1192, 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, the twins as well as their parents, were entitled to recover damages. The court opined that this was not a claim for "wrongful life" (and therefore untenable), because in this case the doctor's negligence caused not only the birth of the twins, but also their damage. The trial judge further ruled that the Supreme Court of Canada's decision in Krangle v. Brisco (2002), 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 18 under statutory provisions in British Columbia, did not preclude a trier of fact in Ontario from awarding such damages. The doctor appealed 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 did 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.

The Ontario Court of Appeal allowed the appeal on issue (2) and dismissed the appeal on issues (1) and (3).

Damages - Topic 1288

Losses by third parties - Recoverable losses - General and special damages for personal care of injured person - [See Damages - Topic 1567 ].

Damages - Topic 1567

General damages - General damages for personal injury - Future care and treatment - A doctor/obstetrician prescribed a fertility drug (Clomid) to a patient who failed to begin ovulating after taking birth control pills - The patient became pregnant with twins who were born prematurely and who suffered damage as a result of their premature birth - The patient and her husband, the twins' sister, grandmother and the twins themselves sued the doctor - A jury found the doctor negligent for failing to provide the necessary information to the patient (mother) - The jury also found on the issue of causation that had the mother been told all the risks, she would not have taken the Clomid - Thereafter, the trial judge ruled that the Supreme Court of Canada's decision in Krangle v. Brisco (2002), 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 18 under statutory provisions in British Columbia, did not preclude a trier of fact in Ontario from awarding such damages - The doctor appealed - The Ontario Court of Appeal dismissed the appeal, agreeing with the trial judge on this point - See paragraphs 75 to 86.

Medicine - Topic 4244.2

Liability of practitioners - Negligence or fault - Treatment with or withdrawal from drugs (incl. side effects) - [See first Medicine - Topic 4255.2 ].

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose - [See first Medicine - Topic 4255.2 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See first Medicine - Topic 4255.2 ].

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth or wrongful life - A doctor/obstetrician prescribed a fertility drug (Clomid) to a patient who failed to begin ovulating after taking birth control pills - The patient became pregnant with twins who were born prematurely and with severe disabilities - The patient, her family and the twins sued the doctor - A jury found the doctor negligent and that causation was established - Following the verdict, the doctor asked the trial judge to dismiss the children's claims as disclosing no cause of action, because they constituted a claim for "wrongful life" which was untenable in Canada - The trial judge held that this case did not fall into the category of "wrongful life" claims - The doctor appealed - The Ontario Court of Appeal allowed the appeal on this ground - The court held that while it disagreed with the finding of the trial judge that the children's claim against the doctor did not fall into the category of claims that had been designated in prior case law as "wrongful life", the court held that it preferred to decide the case by using the normal analysis of tort liability: duty of care, standard of care, breach and damage - Using that analysis, the court held that the doctor owed no legal duty to the unborn children in this case and therefore the twins had no cause of action against the doctor - Because the court concluded that there was no duty of care and therefore no cause of action by the twins, it was not necessary for the court to decide whether and in what circumstances the Ontario courts might recognize a cause of action for "wrongful life" - See paragraphs 36 to 74.

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth or wrongful life - In Lacroix v. Dominique (Man. C.A.), the court divided cases where a child was born with disabilities into two categories: (i) cases in which the abnormalities were 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 - In cases in the first category, where the defendant's wrongful act caused the harm, the child had 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 was an action for wrongful life for which there was no claim in law - The Ontario Court of Appeal discussed the law in this area - The court concluded that it did not find the two categories described in Lacroix particularly useful for analysing these claims - The court stated that it preferred 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" - See paragraphs 39 to 61.

Practice - Topic 5182

Juries and jury trials - Verdicts - Setting aside jury verdict - A doctor/obstetrician prescribed a fertility drug (Clomid) to a patient who failed to begin ovulating after taking birth control pills - The patient became pregnant with twins who were born prematurely and suffered severe disabilities - The patient and her family sued the doctor - A jury found the doctor negligent for failing to provide the necessary information about the risk of twin births when taking Clomid - The jury also found on the issue of causation, that had the mother been told all the risks, she would not have taken the Clomid - The doctor appealed, arguing that the jury's verdict was unreasonable - In particular, the doctor submitted that because of the clear inconsistency between the jury's finding that the doctor told the patient 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 made this one of those rare cases where the jury's verdict had to be set aside - The Ontario Court of Appeal dismissed the appeal on this ground - The court stated that it was open to the jury to infer from the patient's evidence, taken together with the fact that they accepted that the doctor 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 the doctor 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 - See paragraphs 19 to 35.

Torts - Topic 8801

Duty of care - Particular relationships - Claims for prenatal injuries (incl. wrongful birth or wrongful life) - General - [See both Medicine - Topic 4255.2 ].

Cases Noticed:

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283, dist. [para. 5].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 22].

Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831; 3 N.R. 326, refd to. [para. 26].

Mickle et al. v. Salvation Army Grace Hospital et al. (1998), 81 O.T.C. 23; 166 D.L.R.(4th) 743 (Gen. Div.), refd to. [para. 37, footnote 2].

Lacroix v. Dominique (2001), 156 Man.R.(2d) 262; 246 W.A.C. 262; 202 D.L.R.(4th) 121 (C.A.), not folld. [para. 37, footnote 2].

Arndt et al. v. Smith, [1994] B.C.T.C. Uned. 688; [1994] 8 W.W.R. 568 (S.C.), revd. in part (1995), 61 B.C.A.C. 57; 100 W.A.C. 57 (C.A.), revd. [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 37, footnote 2].

Jones et al. v. Rostvig (1999), 7 B.C.T.C. 188; 44 C.C.L.T.(2d) 312 (S.C.), refd to. [para. 37, footnote 2].

Dehler v. Ottawa Civil Hospital (1979), 101 D.L.R.(3d) 686 (Ont. H.C.), affd. (1980), 117 D.L.R.(3d) 512 (C.A.), refd to. [para. 37, footnote 2].

McKay v. Essex Area Health Authority, [1982] 1 Q.B. 1166 (C.A.), refd to. [para. 38].

Kush v. Lloyd (1992), 616 So.2d 415 (Fla.), refd to. [para. 37, footnote 2].

Viccaro v. Milunsky (1990), 551 N.E.2d 8 (Mass.), refd to. [para. 37, footnote 2].

Garrison v. Medical Center of Delaware Inc. (1989), 581 A.2d 288 (Del.), refd to. [para. 37, footnote 2].

Lininger v. Eisenbaum (1988), 764 P. 2d 1202 (Colo.), refd to. [para. 37, footnote 2].

Bruggeman v. Schimke (1986), 718 P. 2d 635 (Kan.), refd to. [para. 37, footnote 2].

Procanik v. Cillo (1984), 97 N.J. 339, refd to. [para. 37, footnote 2].

Nelson v. Kruzen (1984), 678 S.W.2d 918 (Tex.), refd to. [para. 37, footnote 2].

Cockrum v. Baumgartner (1983), 95 Ill.2d 193, refd to. [para. 37, footnote 2].

Harbeson v. Parke-Davis Inc. (1983), 98 Wash.2d 460, refd to. [para. 37, footnote 2].

Turpin v. Sortini (1982), 31 Cal.3d 220, refd to. [para. 37, footnote 2].

Becker v. Schwartz (1978), 386 N.E.2d 807 (N.Y.), refd to. [para. 37, footnote 2].

Bannerman v. Mills (1991), Aust. Torts Rpts. 81-079 (N.S.W.S.C.), refd to. [para. 37, footnote 2].

Harrington v. Stephens, [2004] N.S.W.C.A. 93 (Aust.), refd to. [para. 37, footnote 2].

Zeitsov v. Katz (1986), 40(2) P.D. 85 (Isr. S.Ct.), refd to. [para. 37, footnote 2].

Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 94 D.L.R.(4th) 487 (C.A.), refd to. [para. 43].

Webster et al. v. Chapman et al., [1998] 4 W.W.R. 335; 126 Man.R.(2d) 13; 167 W.A.C. 13 (C.A.), refd to. [para. 45].

Dobson v. Dobson and Carter, [1999] 2 S.C.R. 753; 242 N.R. 201; 214 N.B.R.(2d) 201; 547 A.P.R. 201, refd to. [para. 64].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 66].

Paxton v. Ramji, [2006] O.T.C. 301 (Sup. Ct.), refd to. [para. 69].

Authors and Works Noticed:

Hensel, Wendy F., The Disabling Impact of Wrongful Birth and Wrongful Life Actions (2005), 40 Harv. C.R.-C.L.L. Rev. 141, p. 195 [para. 54].

Stretton, Dean, The Birth Torts: Damages for Wrongful Birth and Wrongful Life, [2005] Deakin L. Rev. 16 (Australia), generally [para. 54].

Counsel:

Michael E. Royce, Peter J. Osborne and Jaan E. Lilles, for the appellant;

Paul J. Pape and Susan Chapman, for the respondent.

This appeal was heard on June 18, 2007, by Feldman, Gillese and MacFarland, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered on January 7, 2008, by Feldman, J.A.