MDs face scrutiny over duty to unborn

August 31, 2009

Does an obstetrician have a duty of care to an unborn child?

A Guelph hospital, citing a 2008 court decision that found a doctor had no such obligation in the case of a girl born with birth defects because of an acne drug prescribed to her mother, says no.

But the family of another child says yes.

The issue will be argued today in a London, Ont., courtroom. The Liebig family of Rockwood, just outside Guelph, has brought a motion before the courts on behalf of their 8-year-old son, Kevin, born with hypoxic ischemic encephalopathy, or brain damage caused by oxygen deprivation.

He has since been diagnosed with cerebral palsy – the result, his family says, of negligence on the part of three obstetricians and four obstetrical nurses at the birthing unit of Guelph General Hospital.

For the last seven years, the Liebigs have been embroiled in a legal battle with the hospital and health workers, claiming that the mother, Susan, was given too much of the drug oxytocin to speed up labour and then not adequately monitored.

The defendants deny the allegations, which have not been proven in court. A trial is set to begin in September next year. Today, the court will deal explicitly with the duty-of-care issue, sorting it out before it gets to trial.

The family’s lawyer, Barbara Legate, says the Liebigs were recently thrown a curve ball by the defendants, who are claiming to have no duty toward an unborn child.

"I think that’s a jaw-dropping proposition and I bet you that most obstetricians wouldn’t agree," Legate says.

In court documents, the hospital cites an important legal decision that came down last year from the Ontario Court of Appeal, which found that doctors cannot owe a duty of care to unconceived children because their primary obligation is to their female patients.

"Because the woman and her fetus are one – both physically and legally – it is the woman whom the doctor advises and who makes the treatment decisions affecting herself and her future child," the decision read.

The case involved Jaime Paxton, now 6, who was left with birth defects from an acne drug taken by her mother.

A Newmarket general practitioner had prescribed the drug Accutane, which is known to cause catastrophic injuries to a fetus. He believed there was no chance the mother would become pregnant because her husband had undergone a vasectomy. But the vasectomy failed and Jaime was born without a right ear and with portions of her face paralyzed.

"The decision of (the) Ontario Court of Appeal … is the current law of Ontario with respect to whether a health care provider owes a duty of care to his/her patient’s unborn child. The Court clearly stated that no such duty was owed," the Guelph hospital and health workers say in court documents.

But Legate maintains the two cases are entirely different and argues that the findings from the Paxton case should have no bearing on Kevin’s.

"They are trying to take one legal concept and stretch it to cover off a completely different situation," she argues.

"In the Paxton case, there was one patient and that was the mother. In an obstetrical-negligence case, such as Kevin’s, there are two patients, the mom and fetus."

Legate has filed a motion with the Ontario Superior Court of Justice, arguing that health-care providers did, indeed, have a duty of care to Kevin in the critical hours leading to his birth. It will be heard today.

Lawyers representing the hospital and health-care workers declined to be interviewed.

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