 |
"Wrongful
Birth": An Ironic Name for a Cause of Action in the Law of
Medical Malpractice
By
Lee Akazaki
Introduction
to the Problem:
Mickle
v. Salvation Army Grace Hospital
On November 18,
1991, at the Salvation Army Grace Hospital, Windsor, Ont., Sarah
Mickle was born with CHILD syndrome (congenital hemihypoplasia
ichthyosis erythroderma and limb deficiencies), consisting of
severe malformation of her limbs, hip and shoulder, as well
as an intense and wide-spread skin disorder. What followed was
a medical negligence suit brought in the Ontario Court (General
Division), which has exposed the legal defects of the so-called
tort of "wrongful birth," recognized by the Supreme
Court of Canada in 1997. No doubt the ethical and emotional
consequences will continue to put parents of children born disabled
through real-life tragedies, but malpractice lawyers should
think twice about having them played out on the stage of the
civil courtroom.
During an ultrasound
examination conducted at 16½ weeks, the technologist
at the Grace Hospital, under the supervision of a staff radiologist,
found no fetal abnormalities. In the action, Mickle et al. v.
Salvation Army Grace Hospital et al. [1998] O.J. No. 4683 (released
October 26, 1998), Sarah’s parents alleged that if the
ultrasound were performed at 18-20 weeks, there would have been
a better chance of detecting the deformities. In the trial judge’s
description of the claim, the basis of the claim was that Sarah’s
mother "was deprived of her right to choose abortion and
thus prevent the birth of Sarah Mickle." The action was
dismissed on traditional medical malpractice principles. The
trial judge, Mr. Justice Zuber, accepted the defence experts’
explanation as to the quality of the ultrasound films and the
prevalence of 16-week ultrasound examinations in 1991. Although
he found no liability, he assessed damages for extraordinary
costs, subrogation and future care. When it came to assessing
general damages, however, he could not assess them, for the
following reason:
"To characterize
Sarah's existence, as a form of harm, would be an extraordinary
denigration of the value of her life. The acceptance of such
a notion would surely also denigrate the value of the lives
of all those who suffer from serious disabilities. I am unable
to characterize the presence of this bright, beautiful, courageous
(albeit seriously physically challenged) child as a form of
harm that should be translated into an assessment of general
damages." (Mickle, Para. 87)
In retrospect,
the inability of a court of justice to characterize the birth
of a live child as a form of harm, when the alleged malpractice
did not cause the harm, was a telltale sign that there existed
substantive defects in the underlying theory of liability.
Arndt v.
Smith
Mr. Justice Zuber
traced the origin of the issue to the constitutional right to
abortion on demand, as recognized in the two landmark cases,
Roe v. Wade, 410 U.S. 113 (1973), in the United States, and
R. v. Morgentaler (2), [1988] 1 S.C.R. 30, in Canada. He then
followed the reasoning of the Supreme Court of Canada in Arndt
v. Smith, [1997] 2 S.C.R. 539, 25 C.C.L.T (2d) 233. Apart from
an unremarkable discussion among the panelists of the top court
on the effect of the British Columbia Limitation Act, R.S.B.C.
1979, c. 236, their split decision centred on the trial judge’s
application of the "modified objective test" for causation
in informed consent cases (established in Reibl v. Hughes, [1980]
2 S.C.R. 880, viz. whether a person in the plaintiff’s
position would have accepted or declined treatment, had she
been properly informed of the medical facts and consequences).
In Arndt, the majority of the Supreme Court panel agreed with
the trial judge’s judgment dismissing the action, and
found that the failure to disclose some of the risks to the
fetus associated with maternal chickenpox did not affect the
plaintiff’s decision to carry the fetus to term. "Thus,"
according to Mr. Justice Zuber, "the claim for wrongful
birth slipped quietly into Canadian tort law simply as a type
of medical malpractice case without any fundamental analysis
or delineation of the extent of such a claim." (Mickle,
Para. 9)
Mr. Justice Zuber
agreed with the trial judge in Arndt, who approved the abandonment
of the suit on behalf of the baby for "wrongful life"
(Mickle, Para. 5). In Mickle, the infant’s claim for "wrongful
life" was similarly struck out on preliminary motion (Mickle,
Para. 11). These cases do not reach the level of moral and legal
debate surrounding the right to refuse treatment, such as those
involving Jehovah’s Witnesses and donor blood transfusions.
Since the purpose of tort law is to restore victims to the position
they were in prior to the commission of the wrong, it is a logical
impossibility for a child to recover damages for having been
allowed to be born.
Both Arndt and
Mickle therefore concern the claim of the mothers for "wrongful
birth," namely the violation of the right to an abortion
by failing to alert them of the risk or existence of birth defects.
Although Mr. Justice Zuber expressed his discomfort with the
reasoning in Arndt, he applied the informed consent test on
the basis that the Supreme Court in Arndt had recognized "wrongful
birth" as a subhead of medical negligence. His finding
that the mother would not necessarily have known about the existence
or severity of the condition even at 18-20 weeks, or that she
may not have chosen to terminate the pregnancy, was inextricably
linked with his analysis of the evidence of the standard of
care of ultrasound diagnostic examinations in 1991:
"I further
observe that the condition of asymmetrical limb development
is a very long way from those very tragic cases in which it
is revealed that the fetus is devastatingly disabled, both
mentally and physically. In these circumstances, I cannot
conclude that a reasonable woman in Kelly Mickle’s circumstances
would choose abortion. Thus, in my view, apart altogether
from the issue of negligence, this action must fail."
(Mickle, Para. 73)
Nowhere in the
law of negligence are the constituent elements of duty, standard
of care and damage (causation) so intertwined as in medical
malpractice. Whereas a plaintiff must establish all of the elements,
the defence can prevail by eliminating but one. This "organic"
quality of the legal cause of action is a function of the therapeutic
link between treatment and physical condition. By making a ruling
on causation (the failure to give informed consent would not
have altered the outcome), the Supreme Court was able to dispose
of the case by ruling on one point. In fairness, it is plain
from the opening paragraphs of each of the opinions that the
court was presented with the causation question as a narrow
question on appeal. From a tactical perspective, it appears
that by failing to risk having the court rule on the overall
viability of the cause of action, counsel for the defendants
permitted the cause of action to be recognized by default. Consequently,
Mr. Justice Zuber seems to have felt bound by Arndt despite
his express discomfort that the case failed to deal with more
fundamental issues.
Deconstructing
the Elements of the "Wrongful Birth" Fallacy
Wrongful birth
is a legal trompe d’oeil in the sense that most of the
constituent elements of an actionable wrong appear to exist,
but they are brought together by intellectual sleight of hand.
The existence of a medical duty of care of a physician toward
the mother is unquestionable. (Whereas the duty to the unborn
is a legal and ethical minefield.) The standard of care of diagnostic
treatments in the prenatal context, a thorny factual issue,
is nevertheless also a feasible legal inquiry. It is also possible
for the legal mind to see causation, in the Reibl v. Hughes
sense, as a proper question: Would the mother have chosen to
abort the fetus, had she known about the congenital defect or
risk thereof? It is in failing to scrutinize what the damage
is, as opposed to how it was caused, that the courts have allowed
a false tort to be established.
"Damage"
is both a substantive and a remedial element of negligence law.
The plaintiff must have suffered damage to recover. But that
damage also determines what the successful plaintiff can recover,
to the extent that money can place her in the position she was
in prior to the wrongdoing. The "damage" to the mother
in a "wrongful birth" case is identical to that "suffered"
by the newborn and which proved the fallacy of "wrongful
life": the fact that a disabled baby was born is not harm.
In expressing the foregoing statement, it is beyond the scope
of this paper to compare the relative physical, emotional and
moral consequences of childbirth with those of abortion. The
court, similarly, sitting as an arbiter of a civil lis, cannot
decide whether the mother is worse off having given birth than
if she would have been, had she terminated the pregnancy.
According to a
straight-up traditional tort analysis, one might consider the
lengthier and more painful experience of pregnancy and childbirth
and the less painful, intrinsically shorter and shortening experience
of abortion. This is about as close to compensable harm as the
factual paradigm allows. The practical issue is whether the
court can award damages for future care and extraordinary costs.
These claims are necessarily derivative, under the Family Law
Act, R.S.O. 1990, c. F.3, s. 61, and are contingent on the existence
of an injury suffered by the child for which the child possesses
a viable cause of action. Although the parent is legally obligated
to care for the child until age of majority, it is the obligation
to pay these costs, and not the costs themselves, which arises
from what has happened to the mother. Thus, not only is the
court not competent to find the mother worse off for having
given birth to a live child, it is also legally inappropriate
to circumvent the child’s lack of remedy by inventing
an independent right to compensation on the part of the maternal
parent, for her having been subjected to the birth.
In Arndt and in
Mickle (albeit reluctantly), the courts have entirely bypassed
the foregoing analysis. These courts have done so by characterizing
the damage as an interference with the right to choose an abortion.
Although this appears to have been implicit in the Arndt court’s
reasons, in Mickle, Mr. Justice Zuber specifically traced the
origin of the tort of wrongful birth back to the time when abortion
was decriminalized. On the facts, this is precisely the right
which has been affected, in terms of looking for remedies available
to the mother. The problem with this approach, however, is that
the interference with the right to choose an abortion is not
a physical harm per se because characterizing the consequence
of the malpractice in question (childbirth) as harm is not justiciable.
Recognition of the right in Morgentaler is properly characterized
as a civil liberty, and the right did not confer any economic
or legal status or advantage in the law of torts. It was established
in Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483,
that a public hospital, although created by government, was
not part of the government and therefore not subject to the
Charter of Rights and Freedoms. The line of cases in which the
Charter has been invoked without success in civil disputes against
institutional defendants illustrates the point that "public"
rights of citizens suffer interference every day by private
parties, or public parties acting in private capacities, without
any legal remedy. Without entering into the issue of the actionability
of "negligent" violation of Charter rights, it suffices
to say that these cannot be invoked against the defendants to
a medical malpractice suit. The relationship between an expectant
mother and a hospital, ultrasound clinic, technologist or obstetrician,
is governed entirely by private civil law.
The Medico-Legal
Implications of the Wrongful Birth Decisions
The Mickle decision
prompted coverage in the Medical Post, a national professional
news publication. In its February 2, 1999, issue, the column
alerted doctors to both Mickle and Arndt, under the headline:
"Wrongful Birth Case Instructive for All." The subhead
read: "Parents sued their doctor for neglecting to diagnose
defects in their unborn child. Although the plaintiffs did not
win their case, wrongful birth is now recognized as a viable
course of legal action."
Studies and treatises
have been published for decades on the effect of malpractice
litigation on the conduct of doctors and on the clinical standard
of care. Few would deny that there is some effect. Obstetricians,
for example, have been known to conduct tests on a newborn’s
cord blood gas as a matter of course to avoid lawsuits arising
from bad results in difficult vaginal births, to obtain proof
that perinatal asphyxia did not occur. It is premature to speculate
what the effect of fear of wrongful birth litigation will be
in the ultrasound clinic and on obstetrical practice. For example,
will the concern lead to more of these scans, contrary to medical
trends against the frequency of their use? If Mr. Justice Zuber
was concerned about the effect of the Arndt decision on the
common law, will the case also lead to inappropriate defensive
medicine? It is incumbent on all parties to the medico-legal
question to reconsider the issue. Plaintiffs’ lawyers
will face this very question in advising clients about the merits
of pursuing a wrongful birth case. The proper discharge of their
professional obligations will have to involve knowledge of the
acceptance of the tort by the Supreme Court of Canada, informing
the client of this state of the law, and then explaining the
difficulties of actually making out a case and recovering an
award of damages. It is the thesis of this paper that the cause
of action is untenable under the law of torts. In order for
Mr. Justice Zuber’s complaint with the Supreme Court decision
in Arndt to be rectified, the top court will need to rule on
the point again. Until then, the legal and medical professions
will be left to exercise their own judgment. Paradoxically,
a plaintiff must once again advance such a case through the
courts before the essential defects of the claim for wrongful
birth are exposed.
Addendum
to "Wrongful Birth" (for On Examination, a publication
of the Medico-Legal Society of Toronto)
When I wrote the
above article, I was mindful of the fact that most U.S. jurisdictions
recognized the tort of "wrongful birth" (as well as
"wrongful pregnancy," but not "wrongful life").
Due to considerations of length and focus, I did not deal with
the American law or research it comprehensively. However, it
does continue to trouble me that my opinion is counter to that
of so many learned common-law jurists.
Many of the dissenting
judgments in the American decisions deal with aspects of the
tort law analysis expressed in my article. The authors of the
majority judgments, however, were not swayed. At least one majority
judgment tried to get around the impossibility of birth as damage,
by saying that it is not the birth but the physician’s
conduct which is "wrongful." However, in extricating
negligence from damage the tort analysis cannot be kept intact.
If the result is not intrinsically wrongful, wrongful conduct
leading to it does not render the result actionable.
The seminal case
seems to be Becker v. Schwartz, 386 N.E. 2d 807, a 1978 New
York Court of Appeals case which appeared to be the first to
be prompted by the U.S. Supreme Court recognition of the right
to abortion in Roe v. Wade (1973). Becker and the cases which
emerge from it treated wrongful birth as a traditional form
of medical malpractice which had been barred by public policy
prior to Roe because of the illegality of therapeutic abortion.
(In the law of negligence, conduct is actionable if there is
a duty, a breach of the standard of care, damage, and the absence
of a public policy reason not to confer a remedy.) The U.S.
courts thus see Roe as having lifted the impediment to the tort
of wrongful birth, instead of giving rise to a novel cause of
action. While the American approach to wrongful birth still
falls short of addressing the crucial problem of characterizing
the birth of a child as legal harm, we can at least see how
the law developed south of the border. There are sufficient
differences between the civil remedies conferred by our Charter
of Rights and Freedoms (based on Positive Law and convention
law) and the U.S. Bill of Rights (based on Natural Law) that
Morgentaler should not have the same effect on our law of malpractice.
R.
Lee Akazaki received his B.A. and LL.B. from the University
of Toronto, and is now practising law with Gilbertson, Davis,
Herceg, Emerson, Barristers and Solicitors. He is the author
of articles on liability insurance, professional malpractice
and copyright law. |
