No “Wrongful Life” in Canada: Supreme Court

by John McKiggan

In Canada there is no such thing as a claim for “wrongful life”. In a ruling released last week, the Supreme Court of Canada denied leave to appeal a Court of Appeal decision that confirmed that Canadian law does not recognize the tort of “wrongful life” as a legitimate cause of action.

In Hergott, et al. v. Bovingdon the defendant doctor prescribed a fertility drug for the plaintiff mother. The doctor did not explain the risks of taking the drug to the mother.

The drug caused the mom to become pregnant with twins. Unfortunately, the twin pregnancy caused a premature birth, and the premature birth caused the twins to be born with severe disabilities.

At trial the jury found that the doctor was negligent in failing to explain the risks of the drug to the mother. In other words, the mom did not provide her “informed consent” to take the drug.

The trial judge also ruled that the doctor owed a duty of care to the twins, which entitled them to recover damages for their injuries. The judge awarded compensation to the parents for the cost of having to care for their severely disabled children after they reached the age of 18.

The Ontario Court of Appeal ruled that twins’ claims were “wrongful life” claims, and therefore barred by Canadian law.

The Supreme Court of Canada denied leave (permission) to appeal the decision.

What does it mean?

The Supreme Court has essentially upheld the status quo on the type of claims that can be brought to court. The decision arguably has opened the door to the amount of damages that can be claimed in serious injury cases.

As the law stands now there are three types of claims that typically arise out of catastrophic birth injury cases.

Wrongful Life:

These claims are typically brought where a medical procedure for sterilization or abortion fails and a child is born as a result. Or, as in the Hergott v. Bovington cases, where a child is born with a severe disability as a result of negligence. The claim is typically brought by the child claiming compensation for the harm caused by their birth. In Canada, these types of claims have usually not succeeded. The courts have stated that a claimant cannot claim to have suffered harm as a result of their birth. In other words, the courts assume that it is better to be alive than never to have been born. The Supreme Court of Canada’s decision not to hear the twins appeal in the Bovington case confirms that this remains the state of the law in Canada.

Wrongful Birth:

These types of claims are typically brought by parents of children that have been born with an injury. Typically the injury is the result of post-conception negligence by a doctor. For example where a child is born with Erbs Palsy, stretch injury to the brachial plexus that happens during a baby’s delivery. These types of claims have generally succeeded.

Wrongful Pregnancy:

These types of claims are brought by parents on behalf of children. The claims typically involve an allegation of negligence resulting in an unplanned pregnancy due to a failed sterilization procedure. For example see the recent decision from New Brunswick where a mom was awarded $90,000.00 after she had a child as a result of a failed tubal ligation.

Expanding Recoverable Damages?

Less attention has been paid to the issue of the parents claim for the cost of caring for the twins after they reached the age of majority. The doctors lawyers argued that the Supreme Court of Canada decision in Krangle v. Brisco means that the defendant does not have to pay for the cost of a disabled child once the parent is not legally obliged to care for the child.

The Ontario Court of Appeal emphatically rejected this argument.

The trial judge rejected the appellant’s submission that Krangle stands for the proposition that the absence of a legal obligation on the parents to support the children after age eighteen is a bar to recovery. I agree with the trial judge. In Krangle, the child was not going to be supported by the parents once he was an adult. Therefore, they would not be incurring that cost. This was not because they were not entitled to incur the cost had they wished but because the group home was in the child’s best interest. The issue in that case was whether the parents would be obliged to reimburse the state for the cost of the child’s care, which turned on their legal obligation to provide support. If they had been responsible to reimburse the state, they would be seen as likely to incur the cost of future care and the court would have awarded damages to cover this cost.

I have represented parents whose children have suffered catastrophic injuries. In many cases the parents are overwhelmed by the costs and pressures of caring for a severely disabled child. As a result, their future care plan often involves placing the children in provincially funded care or group homes after the child reaches the age of majority.

The Bovington decision means that parents can make a claim for the extraordinary costs of caring for a disabled child, once they become an adult.

As the Court of Appeal put it:

A group home could only provide for their physical care but not their emotional well-being. Nor would the group home be able to give them intellectual stimulation and pleasure.

So there you have it. The Supreme Court holds the line on wrongful life but clears the way for claims for the costs of caring for a disabled adult child so that they can continue to receive the love and emotional support that only a parent can provide.

If you are looking for a Nova Scotia Medical Malpractice Lawyer you can contact me for a free copy of my book: The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of potential medical malpractice victims never receive a penny in compensation.

If you believe you or a family member believe you may have been injured as a result of medical malpractice you can contact me through this blog, or call me toll free at 1-888-647-7201.

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