The Ontario Court of Appeal, with a 5 member panel,
heard Liebig v Guelph General Hospital
et al. The five member were empanelled as a result of the plaintiff’s
request to revisit the Paxton
decision, relied on by defendant docs and hospital in support of the
proposition that no duty of care is owed to a fetus in the obstetrical context.
Defence argued that the logical interpretation of Paxton would extend it to such cases. I argued for the
plaintiffs that 1) the Cooper-Anns test cannot be used to dismantle causes of
action, and that doing so is judicial law reform; 2) in light of Fullowka v Pemberton (SCC) that Paxton and Bovingdon would have been decided differently – the important
piece in Fullowka being that a
proximate relationship that would otherwise give rise to a duty should not be
negated if an appropriate standard of care can be fashioned that deals with any
conflicts; and 3) the conflict concept relied on by the court in Bovingdon and Paxton is only available in the case of public duties which
conflict with private law duties.
(
FYI - Bovingdon was the case
where chlomid was prescribed to a woman, which led to twin pregnancy. No duty
owed to future children. / Paxton
was the case where accutane was given to a woman who then became pregnant. Child
born deformed. No duty to future child, conceived or unconceived. Liebig is a standard birth trauma action
related to negligence on the day of delivery)
Decision reserved. Was heard May 20th.
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Barbara Legate |
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Please visit us at: www.legate.ca |
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