Wrongful Life Claims: An Update From The SCC

• Published date: 03 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Raphael Jacob, Justine Blanchet and Emily Paslawski

On March 24, 2022, the Supreme Court of Canada (SCC) refused leave to appeal from the Ontario Court of Appeal's (ONCA) decision in Florence v Benzaquen, 2021 ONCA 523 (Florence). This decision effectively closes the door on claims of physician negligence towards future children, or children prior to conception, often known as "wrongful life" claims. Wrongful life claims involve claims by a child against a physician or other medical provider, resulting from birth defects. The child claims that but for the negligence of the medical provider, they would not have been born (and suffered injuries). These claims differ from claims for personal injury to the infant (or mother) arising from negligent care during the pregnancy and/or delivery.

The parties in Florence included Ms. Florence, her husband, and their three children - triplets who were born prematurely at 26 weeks of gestation, resulting in life-altering disabilities. Prior to conceiving the triplets, Ms. Florence was prescribed Serophene, a fertility drug, by the respondent physician, Dr. Benzaquen, which resulted in the premature birth. The triplets asserted a claim in their own right that Dr. Benzaquen owed them a duty of care. They alleged that Dr. Benzaquen knew, or ought to have known, that prescription of Serophene could cause the children harm. The claim was dismissed by the chambers judge on the basis that it had no reasonable prospect of success, as it was not a claim that was recognized at law. This decision was appealed to the ONCA.

The appellants in Florence claimed that prescription of Serophone was contraindicated in this case, and was therefore a breach of Dr. Benzaquen's duty of care toward the plaintiff children. The ONCA held that this consideration was relevant to the standard of care that Dr. Benzaquen was obligated to provide to Ms. Florence. However, there was no duty of care owed to a future unborn child. Further, the court held that physicians would be placed in an "unworkable" or "impossible" position due to the inherent conflict of interest that would arise from owing a duty of care to both the patient, and the patient's future children simultaneously. Ultimately, the ONCA dismissed the appeal and held that claims against physicians for alleged negligence that occurred pre-conception will "[...] necessarily result in a determination that the claims are not viable in law."

Application in Alberta

The SCC's denial of leave to appeal in this case indicates that physicians do not...