"Wrongful Life"?

The Ontario Court of Appeal has denied a wrongful life claim of twin sisters.  The twins were born prematurely and and severely disabled because their mother's doctor prescribed a fertility drug (Clomid).  A jury had previously found the obstetrician negligent because he had misled the mother about potential side effects of the drug, and the family was awarded just over $12 million in damages.  On the eve of the trial, the family and doctor agreed on a settlement for $8.6 million. (The appeal continued because the amount of the settlement depended on its outcome.)

In her decision, Justice Kathryn Feldman wrote:

"The appellant's duty to his patient, the mother, was to help her become pregnant if possible and to provide her with all the information she needed to decide whether to take fertility medication.  Once she had the information, it was entirely her choice to take the Clomid. She was not obliged to act in the best interests of a future child or children or to make the choice they would want. ... This is similar to a mother's right to choose whether to have an abortion."

While the girls' circumstances are awful, and can be easily proven to be a result of the doctor's negligence, to claim that they had a right to a drug-free pregnancy and argue it is a breach of care of them is illogical.  At the time the drug was administered, the children were in two parts: an ovum in their mother's ovary, and a yet-to-be-produced sperm in their father.  From a somewhat simplistic standpoint, half of them did not even exist at the time the drug was administered, so to claim breach of care is impossible since one cannot care for someone that did not exist.  A doctor does not owe a standard of care to the unfertilized ovum in a patient's body.  If they did, then it could be argued that any menstruation that followed unprotected intercourse was a wrongful death.

However, the original finding on behalf of the family was indeed accurate and justified.  Given the facts (i.e. that the doctor failed to notify the patient of the side effects), there was negligence that resulted in the twins' conditions (one is blind, quadriplegic and unable to speak; the other is paraplegic and requires a wheelchair).  The sisters will require medical care for the rest of their lives because of the doctor's failure to act responsibly, and therefore some form of financial compensation is needed to help with the expense of their ongoing care.

It is a complicated matter, and difficult for me to fully comprehend because I have not endured such tragedy in my life.  But the underlying implication of the claim was that the twins would have been better served if they had never been born, and that is something I cannot grasp.  As a parent, to argue that a child should never have existed, to never have met that child is something I cannot fathom.  But as I said, my child is not disabled; she faces none of the challenges those twins will face.  If I had to endure watching them suffer every day, I do not know if I would feel differently.

But right now, I feel like no matter what, I would be better off having met her than not.

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Comments

[Julie Pippert]

Okay this is a complicated one for me.

I think 99.9% of doctors are exceedingly negligent about administration of clomiphene (Clomid). Since it works in the brain and affects the endocrine system, it can carry some significant risks.

Premature birth and disability is never one I heard of. Clomiphene created the multiples pregnancy but it's a loose link in my mind that this is the factor (the liable factor). I'm not sure I agree with the outcome of the suit.

But I am glad in a way about the outcome because it will force doctors to be more cautious with this drug (albeit from the wrong angle and wrong reasons---they should be careful because of patient care concerns).

It should not be used for more than three cycles and yet I hear people on cycle 9 and 10 of it! And they don't even know to be worried! Not THAT'S medical negligence. I believe it results from gynecologists and obstetricians administering fertility treatment. In the vast majority of high order multiples and problematic multiples outcomes, it is generally an OB/GYN at the bottom.

Some of my issues may be attributed to the three cycles of Clomid. My children are fine but *I* do have lifelong health issues.

My doctor and I would have preferred to avoid this drug but insurance FORCED us to use it, against medical advice, if I wanted the next stage in care.

In my mind, this is a much larger issues about health care, doctor care, patient care, one size fits all medicine, and so forth---all of which react against each other in a vicious circle.

In the center of it all is the patient, who must become a medical and pharmaceutical expert to ensure she is getting the best care.

If she doesn't then I believe, to some degree, she is also being negligent.

I also am concerned about lawsuits that involve "my pregnancy and child didn't turn how how I'd hoped."

In my humble opinion there is negligence, such as downplaying red flag symptoms that result in injury or worse and then there a murky area.

"Right to a drug free conception." Then the parents ought to have opted out of fertility treatment in the first place.

/end ramble

[Sandra]

I was so conflicted in my reaction when I first heard about this. I had many of the same thoughts as you did and still don't know exactly where I sit. I have opted not to undergo fertility treatments like Clomid for lots of reasons and this is but one of them. But at the same time there are no guarantees in any pregnancy.