A Toronto doctor cannot be sued by a child born with serious deformities caused by a drug that was prescribed to its mother, the Ontario Court of Appeal ruled yesterday.
In an important 3-0 ruling, the court said that doctors cannot owe a duty of care to unborn 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," Madam Justice Kathryn Feldman wrote on behalf of Mr. Justice Michael Moldaver and Mr. Justice Russell Juriansz.
The court also said that granting a child the right to sue doctors for damage caused before birth would also interfere with a woman's right to an abortion. The ruling closed the door on a lawsuit launched by Jaime Paxton, her parents - Dawn and Paul - and her three siblings.
The family alleged that Shaffiq Ramji negligently prescribed Ms. Paxton, 36, the acne drug Accutane, which is known to cause severe defects in fetuses.
Jaime was born without a right ear, and with portions of her face paralyzed.
At trial, family lawyers Paul Pape and Susan Chapman won the battle, but lost the war.
They managed to persuade a judge to buck jurisprudential odds and find that Dr. Ramji owed Jaime a duty of care. However, the judge went on to conclude that Dr. Ramji had met the standard of care expected.
In defence of Dr. Ramji, lawyer Darryl Cruz and Sarit Batner argued that the prescription was given because Mr. Paxton had undergone a vasectomy several years earlier, making it virtually impossible for his wife to conceive.
Yesterday, the appeal judges reasoned that the position of a doctor relative to an unborn child is remote. They said that doctors cannot "advise or take instructions from a future child."
If children disabled by medical damage caused in the womb are to be compensated, it will be up to politicians to find a way, the court said.
