Suing for ‘wrongful birth’
May 17th, 2008 by Joanne
In a society that focuses more and more on the wants and needs of adults, I suppose it’s not surprising that we now have situations in Canada where women are suing for ‘wrongful birth’. Today’s National Post tells several stories of such women – Seeking solace in law when a baby is a burden.
In some cases, sterilization operations failed. In others, abortions failed and the family was left with the burden of raising a healthy, beautiful child.
In a recent New Brunswick decision, a woman was awarded $80,000 to cover costs of raising her child who was born due to a botched tubal ligation:
Much was her shock, then, when, barely a year later, she became pregnant. She eventually gave birth to a healthy baby girl. But just over a month ago, a judge ruled in favour of the lawsuit she had filed over the sterilization blunder, awarding the mother $80,000 in damages.
"Sometimes the birth of a child is not a blessing. It is often a burden," Madam Justice Paulette Garnett of the New Brunswick Court of Queen’s Bench wrote in her judgment.
"Medical science has made it possible for families to limit the number of children they have, and, in this country, the vast majority of them do … The fact that (she) now treasures her unplanned child is irrelevant. It is relevant that she has to feed, clothe and educate her."
Two questions here. One is addressed at the end of the article:
Merely calculating the impact of a child in purely financial terms could be problematic, suggests Duncan Embury, a Toronto malpractice lawyer.
"If the cost of raising a child constitutes damages, what if the child then goes on to become a professional athlete? … A child can be an economic advantage as well as disadvantage."
So, what happens if this New Brunswick child does end up being a huge economic advantage to her parents? Do they have to return the money?
This is what happens when we view children as commodities – providing either a net gain or a net loss to the couple’s bottom line.
How cold and unfeeling. Worse is the thought that this poor child could someday learn that not only was she unwanted, but that her mother actually went to court to sue for the burden that she represented.
What a selfish, self-centered society we’ve become.
* * * *
Update : Great letter in Wednesday’s National Post by Diane Wood of Newmarket:
Re: Seeking Solace In Law When Baby Is A Burden, May 17.
A child is the result of the love of a man and a woman, their love made flesh. Why would anyone consider a child to be a bad thing? My husband and I have had eight children, and we would gladly have more. We show our love for each other by having and raising our children; we have learned to be less selfish by learning to love our children and sacrifice for them. It’s not always easy, but we become better people by learning to accept the challenges life sends us.
One of our children died shortly after birth. Maybe I should have sued for I was very excited about that child, and it’s not fair that I do not have her. Any mature adult knows that life never goes the way we plan it. Yet we become mature and wise by learning to accept setbacks.
Rather than awarding damages to a mother after her "sterilization or abortion blunder," why not award the child to someone who would not consider he or she a burden?
Dianne Wood, Newmarket, Ont.
And that last sentence is exactly my point. Thank you for writing that letter, Diane.
* * * *
BTW, I hear that some folks are quite perturbed that I haven’t allowed every comment to be published. Well, you have every right to rant and rave about that on your own blogs.
And I have every right to decide which comments I allow.
Because, you see, its my blog .
This entry was posted on Saturday, May 17th, 2008 at 5:10 pm and is filed under Adoption is an option, Social Issues. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
May 17th, 2008 at 5:42 pm
This is truly sad. This baby will grow up to know about this lawsuit. How can sshe not be damaged by the words of her own mother. She should have loved a loving and decent family to bring up this blessing from God.
May 17th, 2008 at 5:48 pm
I meant given this baby to a loving family
May 17th, 2008 at 6:51 pm
Dr. Roy, I agree.
BTW, how does malpractice insurance work? Does the doctor pay directly or does public health care pay?
May 18th, 2008 at 8:21 am
In Canada, doctors self insure. We have a non profit company called the Canadian Medical Protective Association. We all contribute to the fund based on risk levels of specialty. OB/Gyn is among the highest level of risk.Most provincial governments now heavily subsidize the contributions to the fund as a way to keep doctors in Canada. So it is the CMPA who will pay, it is all doctors and the governments that are the source of the money. The CMPA will not settle, it and its lawyers vigourously defend us.
May 18th, 2008 at 9:32 am
Aha. Thanks Dr. Roy.
So in the end, it’s the taxpayer that pays for these court costs, right?
May 18th, 2008 at 9:35 am
Basically
May 18th, 2008 at 9:40 am
Maybe I should tell Dad.. after my second sister was born, my parents decided not to have any more children. So Dad went in for the vasectomy. It didn’t take, and about 18 months later my brother came into the world.
And not one day in any of our lives has anyone regretted it. I don’t think Mom & Dad could even conceive of the notion that they should somehow be compensated by the state for having another child.
May 18th, 2008 at 9:45 am
Wow. And so the tax-payer gets shafted again.
Dr. Roy, what I really have a problem understanding is why these women, who are obviously so traumatized by the ‘wrongful births’, don’t just give the babies up for adoption? That way they could be giving infertile couples a tremendous gift as well as ridding themselves of this apparently loathsome burden. (And save the taxpayers a lot of money.)
May 18th, 2008 at 9:47 am
Ian, your family is obviously from the old school of thinking that people should take responsibility for themselves and their own actions.
I’m sure your brother is a joy to your whole family and I’m so happy for you that you have him in your life.
May 18th, 2008 at 1:30 pm
Broken down into it’s base elements, a physician screwed up and the patient now bares a financial burden as a result. Why shouldn’t compensation be sought through a malpractice suit?
If you folks are so upset that the taxpayer is footing the bill, maybe you should be directing your anger toward state funded medicare instead…
May 18th, 2008 at 1:41 pm
Richard, this isn’t like operating on the wrong kidney or something. We’re talking about a human being. Why do you suppose the mother didn’t simply give the child up for adoption?
May 18th, 2008 at 5:12 pm
Did you read the article before you contorted the actuality and conflated the issues to arrive at a truly erroneous conclusion to form the foundation of your post?
The family made an amazingly responsible decision, based on economics and the size of the existing family.
A medical procedure was available to ensure that their carefully conceived plan could be put into action.
A doctor screwed up a medical procedure. As a result what should not have been able to happen did.
The family want to keep and love the child, again great.
They realise this might be tough – see original reasons for the procedure.
The family however think that a medical error should be the subject of some disciplinary action. Part of that process involves the assessment of damages to help rectify unexpected costs.
If a doctor causes a problem to occur within a patient that results in them needing around the clock care then the guardians of that patient have every right to seek some redress from the person who messed up.
This child will need a varying amount of care until its 18th birthday, especially so over the next 5 years. I would say that 80,000 is cheap for raising a kid these days.
May 18th, 2008 at 5:35 pm
This child will need a varying amount of care until its 18th birthday, especially so over the next 5 years. I would say that 80,000 is cheap for raising a kid these days.
And if that same financial liability suddenly turns into a huge economic and emotional asset when he or she is able to help look after the parents in their old age, then what? Should they give some of the money back?
May 18th, 2008 at 7:09 pm
Joanne said:
And if that same financial liability suddenly turns into a huge economic and emotional asset when he or she is able to help look after the parents in their old age, then what? Should they give some of the money back?
—-
What? Is THAT the reason to have kids? For your retirement?
May 18th, 2008 at 7:17 pm
Frank said: What? Is THAT the reason to have kids? For your retirement?
How obtuse. No, I’m merely highlighting the theoretical objections that were discussed at the end of the linked article. If you bring it all down to dollars & cents, then you can’t have it both ways, my friend.
May 18th, 2008 at 7:19 pm
Just like everyone else, doctors make mistakes for which our laws will hold them responsible, to the extent of the quantifiable damages. Many times, people choose not to sue doctors for those mistakes for a variety of reasons. Often, it is not worth it because the it is very tough to prove that a doctor did something wrong, ie the quality of care the doctor must exercise in law is “low” (not to be interpreted as insinuating doctors only have to provide low quality care) such that a legal finding of wrongdoing or negligence is very difficult to achieve. Some people can say they are morally opposed to suing for compensation for being blessed with a healthy child. The manner in which the “damages” can be quantified is very difficult to get one’s head around and can only boil down to first principles of the law of damages. Otherwise, it is purely subjective. But the fact remains, thanfully in a civil society, if a doctor or anyone screws up, the law will hole them accountable and try to attach a damages amount to it.
May 18th, 2008 at 7:43 pm
Well, Hejhog, that may be the most non-partisan and objective comment yet. Well done.
May 18th, 2008 at 11:21 pm
p.s.
One can be angry about or opposed to lawsuits against doctors because as a taxpayer your money may ultimately “pay” for the doctors’ “insurance” or CMPA premiums*. Or, one could be angry that one, as a taxpayer, may actually be “paying” for the doctors’ “insurance” or CMPA premiums**. There is a difference.
What is the difference? Well look at it this way. Your radiologist misses the lesion on your CT Scan and takes away any hope you had of surviving the chemo. Well, when your partner and kids try to sue for your untimely death or to hold the doctor responsible or because you were their sole means of support or because they are litigious leeching liberals (copyright), your taxes have funded his defence which will be “to the death” ha ha. Now, your doctor may be a sympathetic defendant and all, but there are some really crappy ones (a very very small percentage), but you’re paying for the defence, to the death, of the crappy ones too.
*Any court costs, lawyer fees and damages are then paid by the CMPA which has a huge (I mean huge) war-chest (seriously huge) to pay those fees and damages (pretty freaking huge).
**I wonder if taxpayers could access the complete particulars of this relationship with a FOIA request. I wonder if doctors think their premiums are too high given the size of the warchest (what’s the word-oh yeah, huge).
May 18th, 2008 at 11:53 pm
Hejhog is correct. The CMPA will vigoursly defend. We have top drawer excellent lawyers. If there is overt negligence the CMPA will settle. We do have a huge fund but there are reasons for that. Lawsuits especailly aginst ortho and ob have become very large. We have also had some problems with litiginous Americans. My annual premiumis about$4000. I get back two thirds of that and the government taxes it. An ob pays 5 times that but also gets about two thirds back.
The government pays a lot of the premium to keep doctors here.
Our system leads to lower legal costs. Malpractice premiús for some ob or neuro surgeons in the states can be up to 300000 dollars.
Insurance companies in the states also often settle.
There are bad doctorsam like in every profession, but they do get weeded out.
May 19th, 2008 at 12:02 am
Hi Dr. E, nice to meet you. Straight from the horse’s mouth, so to speak, which is nice. I’ve heard the CMPA lawyers are indeed top notch. It might more accurately be said, however, they will settle (I’m sure they take instructions from the CMPA) when there is overt negligence, the injured party hires a lawyer who agrees to take the case and can find another similarly qualified doctor to put into writing an opinion spelling out the negligence. But we’re splitting hairs and I’m new to the site, so I don’t watnt to be a total jerk!! Is the CPSO effective at weeding out bad doctors?
May 19th, 2008 at 1:21 am
Richard, this isn’t like operating on the wrong kidney or something.
No, it’s exactly like that.
We’re talking about a human being.
No we’re not. We’re talking about a physician who screwed up and is facing the consequences of her/his actions. The fact that the screw up resulted in the birth of a child is irrelevant to the malpractice suit short of proving that the physician did in fact screw up.
Why do you suppose the mother didn’t simply give the child up for adoption?
I don’t know if you’re a mother or not but if you are, you’re a cold hearted *****. Adoption is not a simple thing to do.
I really hate to say it but in this instance, CC’s correct and you’re out of your tree on this one Joanne. The woman in question did everything right. She looked at her financial situation and determined that there shouldn’t be any more kids. That’s the responsible thing to do, no? She sought a medical solution so that she and her husband could continue having “marital relations”. That’s the responsible thing to do, no? She found out she was pregnant and decided against abortion. That’s the responsible thing to do, no? She decided that she would raise the child she gave birth to. That’s the responsible thing to do no? Especially when there are three other children that watched the baby grow in momma’s tummy for the past nine months? How would she explain the “all of a sudden” missing baby to them? What kind of a mind-job would that do to those other kids?
We’re not talking about some crack-hoe here. Nor are we talking about a welfare mom who squeezes out kids so she can get a bump in her monthly cheques from the state. We’re talking about a stable family facing real additional financial hardships because a physician screwed up. Full Stop.
Like I said earlier, if anything you should be pissed at ol’ Tommy D’s universal medicare program…
May 19th, 2008 at 2:42 am
theoretical objections, riiiight
you are trying to squeeze your agenda where the facts are not supportive.
the family did everything right, the doc messed up and they looked for help in making the error work out to everyone’s benefit.
sometimes there is a forest despite all the trees that block the view
May 19th, 2008 at 7:28 am
The various colleges do eventually weed out the bad doctors. It can be a very slow process. We also now have many maintenace of competence programs , which should also help.
Vasectomy has a recognized failure rate. It has been reported from 15 to 1 in 4000 cases. So I don’t know the details of this case. The man is also supposed to come back to check the sperm count. Many men don’t remeber to come back If you explain risks, patients also assume risks.
If the CMPA defended, they had expert opinion saying the doctor did what was meeting the standard of care. I am not sure if this case was appealed. I am pretty sure it will be appeaked.
All current methods of birth control have failure rates. Will people now sue manufacturers of condoms or the pill for wrongful life?
I agree with the judge in the 70’s such suits are grotesque.
May 19th, 2008 at 9:12 am
…or because they are litigious leeching liberals (copyright)
Copyright? Dang! What if I give you credit?
May 19th, 2008 at 9:18 am
I really hate to say it but in this instance, CC’s correct…
I’ll bet your do. Why doesn’t he/she comment here directly instead of sending his/her minions, I wonder?
May 19th, 2008 at 9:23 am
All current methods of birth control have failure rates. Will people now sue manufacturers of condoms or the pill for wrongful life?
I agree with the judge in the 70’s such suits are grotesque.
Dr. Roy, isn’t it necessary to sign a consent form before any sterilization operation, where you agree that you are fully aware of the failure rate, and possible negative outcomes up to and including death? Does the patient not have to waive legal action if the operation fails?
May 19th, 2008 at 9:45 am
That was my point in my last comment. One has to test after a vasectomy ( sperm count) to test if it worked. It is not always negligence when a vasectomy fails.
May 19th, 2008 at 11:18 am
#
Joanne (TB) Says:
May 19th, 2008 at 9:18 am
I really hate to say it but in this instance, CC’s correct…
I’ll bet your do. Why doesn’t he/she comment here directly instead of sending his/her minions, I wonder?
BAHAHAHAHAHAhhaahahahaha
Richard Evans is one of Cynic’s “Minions” Oh man that is one of the funniest jokes I have heard all year so far. You hear that Dick? You’re A Canadian Cynic Minion. Well, no need to insult anyone hear, JoJo insults Dick and JoJo ends up looking like a complete fool. Mission Accomplished!
May 19th, 2008 at 11:49 am
One has to test after a vasectomy ( sperm count) to test if it worked. It is not always negligence when a vasectomy fails.
Dr. Roy, I guess in the case of the B.C. couple in the article, the sperm count tests from the husband’s vasectomy were incorrectly read. So they obviously got the go-ahead when there was reason to be concerned that the operation was not actually successful. I suppose in this case I could understand their suing for damages of some kind.
May 19th, 2008 at 11:50 am
JoJo insults Dick and JoJo ends up looking like a complete fool. Mission Accomplished!
If that’s what cranks your motor, I’m so happy to be of assistance.
May 19th, 2008 at 12:10 pm
Oh, and Richard, if you feel insulted, please accept my apology. I don’t actually visit CC’s site anymore. Just noticing the odd referral from that cesspool.