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$12.5 million award in ‘wrongful life’ case

|Written By Helen Burnett

For the first time in Ontario, a court has ruled in favour of plaintiffs facing a claim of “wrongful life” by a defendant, on the basis of negligence, according to the lawyers in a recent case before the Ontario Superior Court.

Lorenzo Girones says this is the first case where the plaintiffs have won, on the basis of negligence, a case that the defence said was ‘wrongful life.’

The case involved Carolyn and Timothy Bovingdon and their twin daughters, born in 1992, who had brought an action against obstetrician Paul A. Hergott in 2004. The twins were born with disabilities due to premature birth.

According to court documents, the fertility drug Clomid caused the twin pregnancy, which subsequently caused the premature birth and the injury. The Bovingdons alleged negligence on the part of the doctor in prescribing Clomid and “failing to disclose and misrepresenting risks associated with Clomid.”

“Bovingdon claimed she was denied choice to attempt pregnancy without Clomid,” says the judgment in Bovingdon (litigation guardian of) v. Hergott.

Hergott claimed the children did not have a cause of action and that the claim was not tenable on public policy grounds as it was a case of “wrongful life,” arguing that “but for the prescription of the fertility drug, these two children would not have been born,” notes the decision.

However, Justice Gladys Pardu writes that “in any event, the infant plaintiffs do not complain that they were deprived of the right to ‘non-existence.’ It is no answer to an action by an infant to simply say that if the physician had not been negligent the child would not have been born.”

In her final decision in the case, Pardu ruled that the children’s action did not constitute wrongful life and was sustainable and that “judgment will issue on the children’s action in accordance with the verdict of the jury.”

The trial jury in the case found that the doctor was negligent in “failing to adequately disclose the material risks associated with Clomid.”

The plaintiffs were ultimately awarded a $12.5-million judgment in the case, plus costs.

Lorenzo Girones of Timmins, Ont., firm Girones and Associates, lawyers for the plaintiffs, told Law Times that “this is the first case in Ontario where the plaintiffs have been successful in winning, on the basis of negligence, a case that the defence said was wrongful life.”

“Wrongful life is generally not accepted in the English world of law. It is generally not accepted in Australia, in England, in the United States, and in Canada, because nobody wants to give money to a child who says, but for the negligence, I would not be alive today,” said Girones.

The case also brought into question the broad application of a 2002 Supreme Court of Canada decision relating to the ability of parents to claim damages for future care of their disabled child in a wrongful birth case. Pardu’s ruling says the Krangle v. Brisco decision was only relevant to that case.

In Krangle, the Supreme Court ruled that the parents of a disabled child in a wrongful birth case would not be entitled to damages for his cost of care after age 18, as those expenses would be covered by the state. The plaintiffs in that case were awarded an $80,000 judgment, or five per cent of the total amount the court would have awarded them, had they been eligible to claim damages for the cost of future care.

Girones noted that since Krangle, many in the legal profession had been under the impression that payments in this type of case stopped after the age of 18.

In Bovingdon, however, Pardu says “while the parties agree that the parents of disabled children asserting a claim for wrongful birth may assert a claim for the costs of future care until the children reach adulthood, the parties disagree as to whether the parents may assert a claim for future care costs to be incurred while the children are adults.

“The defendant argues that such claims are not available as a matter of law when the parents are not legally obliged to support their children under the applicable provincial family law legislation, except for some contingency to reflect the possibility that the law will be changed.

The plaintiffs assert that the decision on Krangle was based on the particular circumstances and evidence led in that case, and that the evidence in this case leads in the opposite direction,” says the judgment.

Pardu says “the Krangle v. Brisco decision was based on the evidence in that case, in combination with the B.C. Family Relations Act. This case is different, on the facts, and I conclude that the parents are not barred as a matter of law from asserting a claim for the extraordinary costs of care of disabled adult children.”

This is the first time such a decision has been made in a wrongful birth situation, said Girones.

Counsel for the defendant would not comment on the case, as an appeal has already been filed with the Court of Appeal. Girones says he is hoping for an appeal date by June 2007.

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