Liebig et al. v. Guelph General Hospital et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Goudge, Feldman, Sharpe, Gillese and LaForme, JJ.A.
• Citation: 2010 ONCA 450,(2010), 263 O.A.C. 180 (CA)
• Date: 17 June 2010
• Subject Matter: COURTS,MEDICINE,PRACTICE

Liebig v. Guelph Hospital (2010), 263 O.A.C. 180 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. JN.055

Susan Margaret Liebig, Bernie Liebig, Victoria Liebig and Kevin Liebig, by their litigation guardian Susan Margaret Liebig, Hildegard Liebig as Personal Representative of the Estate of Walter Liebig, deceased, Hildegard Liebig, Steve Liebig, Gerry Liebig, Jim Nemet, Eva Nemet, Kathy Nemet, Tammy Graham (plaintiffs/respondents) v. Guelph General Hospital, Dr. Benjamin Ayanbadejo, Dr. Roger Perron, Dr. Donald Huband, Nurses Jean McLean, Laura Lobo, Deb Randall and Amy Forsythe Tettman (defendants/appellants)

(C51224; 2010 ONCA 450)

Indexed As: Liebig et al. v. Guelph General Hospital et al.

Ontario Court of Appeal

Goudge, Feldman, Sharpe, Gillese and LaForme, JJ.A.

June 17, 2010.

Summary:

An infant was born with cerebral palsy. The plaintiffs (including the infant) sued the defendants (hospital, doctors and nurses), alleging negligence immediately before and during the delivery process. At issue on this pre-trial rule 21 motion to determine a point of law was whether the defendants owed a duty of care to the infant plaintif. The defendants relied on two recent Ontario appellate decisions to submit that no duty of care was owed to the infant.

The Ontario Superior Court, in a judgment reported [2009] O.T.C. Uned. P08, granted the declaration. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 21

Stare decisis - Authority of judicial decisions - The common law - General principles - The parties requested that the court lay down broad guidelines in the area of the duty of care owed to unborn children in medical negligence cases, including whether the duty of care would extend in certain hypothetical factual scenarios - The Ontario Court of Appeal stated that "a common law court should be cautious about laying down principles or rules that are not required to decide the case before it and ordinarily should limit itself to the requirements of the case at hand ... As we can decide this case on the basis of established case law, in keeping with the tradition and spirit of the common law, we refrain from doing any more" - See paragraphs 19 to 20.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - [See Medicine - Topic 4260.7 ].

Medicine - Topic 4260.7

Liability of practitioners - Negligence or fault - Duty of care to foetus - An infant was born with cerebral palsy - The plaintiffs (including the infant) brought a negligence action for damages against the defendants (hospital, doctors and nurses), alleging negligence immediately before and during the delivery process - At issue was whether two recent Ontario appellate decisions fundamentally changed the law, resulting in the infant having no cause of action against the defendants - The Ontario Court of Appeal affirmed the motions judge's declaration that the defendants owed the infant a duty of care - The court distinguished the previous decisions, which found that no duty of care was owed to a future child if the alleged negligence by a health care provider occurred prior to conception - The two cases did not change the established law that "an infant, once born alive, may sue for damages sustained as a result of the negligence of health care providers during labour and delivery" - Caselaw clearly established the general principle that "a child may sue in tort for injury caused before birth", although that legal status arises "only when the child is born".

Practice - Topic 132

Persons who can sue and be sued - Infants - Foetus - [See Medicine - Topic 4260.7 ].

Cases Noticed:

Crawford v. Penney et al., [2003] O.T.C. 16; 14 C.C.L.T.(3d) 60 (Sup. Ct.), affd. [2004] O.A.C. Uned. 433; 26 C.C.L.T.(3d) 246 (C.A.), refd to. [para. 6].

Commisso et al. v. North York Branson Hospital et al. (2003), 168 O.A.C. 100; 48 O.R.(3d) 484 (C.A.), refd to. [para. 6].

Child and Family Services of Winnipeg Northwest v. D.F.G., [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241, refd to. [para. 7].

Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456, refd to. [para. 7].

Duval v. Seguin (1973), 1 O.R.(2d) 482 (C.A.), refd to. [para. 7].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 328 O.A.C. 130, refd to. [para. 8].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260, refd to. [para. 8].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315, refd to. [para. 8].

Bovingdon et al. v. Hergott (2008), 233 O.A.C. 84; 88 O.R.(3d) 641 (C.A.), dist. [para. 9].

Paxton v. Ramji (2008), 242 O.A.C. 34; 299 D.L.R.(4th) 614 (C.A.), dist. [para. 9].

Lacroix v. Dominique (2001), 156 Man.R.(2d) 262; 246 W.A.C. 262; 202 D.L.R.(4th) 121 (C.A.), leave to appeal denied (2002), 289 N.R. 202; 163 Man.R.(2d) 247; 269 W.A.C. 247 (S.C.C.), refd to. [para. 11].

McKay v. Essex Area Health Authority, [1982] 1 Q.B. 1166 (C.A.), refd to. [para. 11].

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81, refd to. [para. 18].

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. 18].

Watkins v. Olaffson et al., [1989] 2 S.C.R. 750; 87 N.R. 73; 61 Man.R.(2d) 81, refd to. [para. 19].

Authors and Works Noticed:

Cross, Rupert, Precedent in English Law (2nd Ed. 1968), pp. 39 to 43 [para. 13].

Salmond, John William, Jurisprudence (11th Ed. 1957), p. 224 [para. 19].

Counsel:

Harry Underwood and Darryl R. Ferguson, for the appellant, Dr. Benjamin Ayanbadejo;

Carole Jenkins, for the appellants, Guelph General Hospital, Jean McLean, Laura Lobo, Deb Randall and Amy Forsythe Tettman;

Barbara L. Legate, Joni M. Dobson and Carrie Lynn Simmons, for the respondents;

Richard Halpern, for the intervenor, Ontario Trial Lawyers Association.

This appeal was heard on May 20, 2010, before Goudge, Feldman, Sharpe, Gillese and LaForme, JJ.A., of the Ontario Court of Appeal.

The following judgment was delivered by the Court and released on June 17, 2010.