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Recent Developments in Obstetric Negligence Law
Wrongful Pregnancy, Wrongful Birth, Wrongful Continuation of Pregnancy
And Wrongful Death
Richard M. Bogoroch and Rachel J. Urman
Bogoroch and Associates
In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a summary from the principals underlying wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death litigation.
1.
Wrongful Pregnancy
Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant.1 They typical wrongful pregnancy case involves a negligently performed sterilization procedure that has resulted in the conception of an unexpected and, at least initially, unwanted child.2 Still other cases arise in the context of sterilization procedures which failed, but not through any fault on the part of the defendant. In these cases, the allegations of negligence are based on a duty fully to inform the patient of the risk of failure of even a properly performed sterilization procedure.3
One of the first reported wrongful pregnancy cases in Canada was Cataford4 in which the defendant surgeon negligently conducted a ligature of the fallopian tubes. The female plaintiff already had 10 children at the time this sterilization procedure was performed. For months post-surgery, the plaintiff was found to be pregnant and subsequently gave birth to a healthy baby boy.
1
The Honourable Madam Justice Lax (Ontario Superior Court), Wrongful Life, Wrongful
Pregnancy, Wrongful Birth, Ontario Trial Lawyer’s Association Spring Conference 1997.
2
See, for example, Cataford et al. v. Moreau (1978), 114 D.L.R. (3d), 585 (Que.
Wrongful Pregnancy, Wrongful Birth, Wrongful Continuation of Pregnancy
And Wrongful Death
Richard M. Bogoroch and Rachel J. Urman
Bogoroch and Associates
In recent years, the issues of wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death have engendered controversy among the lawyers, physicians and the general public. These cases raise important public policy, moral and ethical issues. The purpose of this paper is to provide a summary from the principals underlying wrongful pregnancy, wrongful birth, wrongful continuation of pregnancy and wrongful death litigation.
1.
Wrongful Pregnancy
Wrongful pregnancy has been defined as an action brought by the parents of a child as a result of preconception negligence by the defendant.1 They typical wrongful pregnancy case involves a negligently performed sterilization procedure that has resulted in the conception of an unexpected and, at least initially, unwanted child.2 Still other cases arise in the context of sterilization procedures which failed, but not through any fault on the part of the defendant. In these cases, the allegations of negligence are based on a duty fully to inform the patient of the risk of failure of even a properly performed sterilization procedure.3
One of the first reported wrongful pregnancy cases in Canada was Cataford4 in which the defendant surgeon negligently conducted a ligature of the fallopian tubes. The female plaintiff already had 10 children at the time this sterilization procedure was performed. For months post-surgery, the plaintiff was found to be pregnant and subsequently gave birth to a healthy baby boy.
1
The Honourable Madam Justice Lax (Ontario Superior Court), Wrongful Life, Wrongful
Pregnancy, Wrongful Birth, Ontario Trial Lawyer’s Association Spring Conference 1997.
2
See, for example, Cataford et al. v. Moreau (1978), 114 D.L.R. (3d), 585 (Que.