Wrongful birth as negligent misrepresentation.

• Author: Houseman, Gordon T.
• Position: Canada

ABSTRACT I INTRODUCTION II THE CONTRAST BETWEEN WRONGFUL PREGNANCY, WRONGFUL LIFE, AND WRONGFUL BIRTH III WRONGFUL BIRTH JURISPRUDENCE IV THE PROBLEMS IN APPLYING THE TRADITIONAL NEGLIGENCE FRAMEWORK TO RELIANCE-BASED WRONGFUL BIRTH CLAIMS V THE REQUIREMENT TO SEARCH FOR AN EXISTING CATEGORY OF COMPENSABLE ECONOMIC LOSS VI NEGLIGENT MISREPRESENTATION AS AN ALTERNATIVE Duty of Care Untrue, Inaccurate, or Misleading Representations Standard of Care Reasonable Reliance Damages VII IMPLICATIONS OF ANALYZING WRONGFUL BIRTH CASES USING A NEGLIGENT MISREPRESENTATION FRAMEWORK VIII CONCLUSION I INTRODUCTION

In Canadian jurisprudence, the cause of action described as wrongful birth is based on "the post-conception interference by the tortfeasor with the mother's lawful right to terminate the pregnancy had an informed decision been available to her". (1) That is, a mother's claim of wrongful birth is based on her contention that "but for" a doctor's negligence, her child would not have been born. Wrongful birth cases usually involve the unwanted birth of a disabled child, (2) and typically arise in one of two situations. The first type of situation can be described as performance-based wrongful birth. It involves an action against a doctor who negligently performs a medical procedure on a pregnant woman, with the failed medical procedure resulting in the birth of an unwanted child. (3) The second type of situation can be described as reliance-based wrongful birth. It involves an action against a doctor who provides inaccurate or misleading medical advice to a patient, with the patient's reliance on the advice resulting in the birth of the unwanted child. (4) In either case, the unwanted birth results in a substantial economic outlay on the part of the parents in caring for the child.

Currently, courts use a traditional negligence framework to analyze both performance-based and reliance-based wrongful birth claims. This article will contend that negligent misrepresentation is a more appropriate framework for deciding reliance-based wrongful birth cases. (5) The basis for this conclusion is that in reliance-based situations the traditional negligence approach disregards the relationship between the parties--actions taken by the doctor and injury suffered by the plaintiff. Conceptually, a negligent misrepresentation framework would more appropriately characterize the defendant's wrong as giving inaccurate or misleading advice to the plaintiff, causing the plaintiff to give up a more economically beneficial position.

This article is structured as follows: Part II provides context for the subsequent discussion by defining and comparing wrongful birth, wrongful pregnancy, and wrongful life claims. Part III canvasses relevant jurisprudence to exemplify and contrast performance-based and reliance-based wrongful birth situations. Part IV outlines the problems with using a traditional negligence framework in analyzing reliance-based wrongful birth claims. Part V argues that negligent misrepresentation should have instead been considered as the appropriate framework for analyzing reliance-based wrongful birth claims. Part VI then shows how the negligent misrepresentation framework is a conceptually more fitting analytical framework for reliance-based wrongful birth claims. Part VII considers the implications of using the negligent misrepresentation framework in analyzing wrongful birth claims, and Part VIII concludes.

II THE CONTRAST BETWEEN WRONGFUL PREGNANCY, WRONGFUL LIFE, AND WRONGFUL BIRTH

Although the term wrongful birth is often used in conjunction with the terms wrongful pregnancy and wrongful life, these three terms describe factually distinct situations. To provide context for the subsequent analysis of wrongful birth, it is useful to define and compare these three terms.

Wrongful pregnancy cases typically involve a mother claiming damages from her doctor based on the doctor's negligence resulting in her unwanted pregnancy. (6) In other words, but for the doctor's negligence, the mother's child would not have been conceived. Wrongful pregnancy and wrongful birth can be distinguished in that wrongful birth cases involve post-conception negligence, whereas wrongful pregnancy cases involve pre-conception negligence. (7) Although wrongful pregnancy claims are generally based on a failed sterilization procedure, (8) a patient's reliance on her doctor's inaccurate or misleading statements may also result in an unwanted pregnancy. (9) It is therefore conceivable that a reliance-based wrongful pregnancy claim for economic damages could also fit conceptually within the negligent misrepresentation framework. For the sake of simplicity, however, this article will focus mainly on wrongful birth.

A wrongful life action is similar to a wrongful birth action, with the main difference being the identity of the plaintiff. A wrongful life action involves a claim "where the child seeks a financial award for its birth with allegedly unsatisfactory traits or prospects, in circumstances where if the alleged negligence had not occurred it would not have been conceived or born at all". (10) While the child is the plaintiff in a wrongful life claim, the mother is the plaintiff in wrongful birth and wrongful pregnancy claims.

In most common law jurisdictions that have considered wrongful life claims, courts have typically held that a wrongful life action is not permitted. (11) In Canada, claims brought by a child born with abnormalities traditionally fell into one of two categories:

1. cases in which the abnormalities [were] caused by the wrongful act or omission of another; and

2. cases in which, but for the wrongful act or omission, the child would not have been born at all. (12)

   If the child's claim fell into the latter category, then the claim was categorized as wrongful life and there was generally no cause of action. (13) In Paxton v Ramji, (14) however, the Ontario Court of Appeal rejected this categorical approach. (15)

   In Paxton, a child claimed damages against a doctor who prescribed her mother acne medication that could cause birth defects if the mother became pregnant while taking the medication. (16) As a result of the mother taking the medication while pregnant, the plaintiff was born with severe disabilities. (17) The Court held that "by asking whether or not the claim before the court should be characterized as one for wrongful life, Canadian courts have asked the wrong question", and that the proper approach was to consider whether the child's claim fit "within an established category of relationship giving rise to a duty of care". (18) In doing so, the Court in Paxton refused to follow the traditional categorical approach outlined by the Manitoba Court of Appeal in Lacroix (Litigation Guardian of) v Dominique, (19) which held that a doctor could be liable to a child for causing her direct damage while she was a fetus, but that the doctor would not be liable to the child for damages that the child would not have suffered had she not been born at all. (20) According to the Court in Paxton, the distinction in Lacroix was "malleable and [did] not provide a rigorous analytical framework for deciding the issue whether the proposed duty of care should be recognized". (21) The Court in Paxton ultimately concluded that the doctor owed no duty of care to the child when the doctor prescribed acne medication to the child's mother. (22)

   In addition to abandoning the traditional categorical approach to wrongful life, the Ontario Court of Appeal in Paxton did not distinguish between wrongful birth and wrongful pregnancy claims. Instead, the Court referred to both claims as wrongful birth. (23) The Court noted that although some courts maintained a distinction between wrongful pregnancy and wrongful birth, nothing turned on this distinction in Paxton and the Court could therefore view wrongful birth and wrongful pregnancy as the same cause of action. (24)

   III WRONGFUL BIRTH JURISPRUDENCE

   As discussed, wrongful birth claims can describe two situations. The first is where the doctor's negligence directly causes the birth of the child. This occurs when, for example, the doctor negligently performs an abortion (performance-based wrongful birth). (25) The second wrongful birth situation exists when a doctor negligently causes the patient to rely on a misrepresentation and the patient forgoes the option to terminate the pregnancy as a result of the reliance (reliance-based wrongful birth). The second situation can occur when the doctor fails to advise the patient properly, or makes an inaccurate statement. (26)

   Cherry v Borsman (27) is an example of a performance-based claim, where the physical actions of the doctor led to the unwanted birth of the child. In Cherry, the patient decided she wanted to terminate her pregnancy and contacted her doctor to arrange an abortion. (28) The doctor concluded that the plaintiff had been pregnant for less than six weeks despite evidence to the contrary. (29) Because the stage of the pregnancy determined the size of the instrument required to perform the abortion, (30) the doctor ultimately chose the wrong instrument and the abortion failed. (31) As a result, the infant was born disabled and the doctor was held liable for negligently performing the abortion procedure. (32)

   In contrast to a negligently performed abortion, a patient may also submit a claim for damages that result from a physician's failure to inform. Arndt v Smith (33) is an example of such a reliance-based claim. In Arndt, the patient claimed that her physician failed to inform her of the risks that contracting chicken pox during pregnancy posed to her fetus. (34) The patient's child was born disabled because of the chicken pox that the patient contracted while pregnant. (35) Nevertheless, the majority of the Court ultimately held that the doctor had not caused the mother harm. (36) Similarly, in McDonald-Wright (Litigation Guardian...