Paxton v. Ramji

2008 ONCA 697, 92 OR (3d) 401
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This appeal concerns whether a doctor owes a tort law duty of care to a future child subsequently born of the doctor’s patient. Dr. Ramji prescribed Accutane to Dawn Paxton, mother of the plaintiff, Jamie Paxton, on the understanding that Dawn would not become pregnant while taking the drug. Due to her husband’s failed vasectomy, she became pregnant and elected to complete the pregnancy.

Accutane is a teratogenic drug, and risks to the fetus when a mother takes the drug are well documented. Dr. Ramji completed education on the prescription of Accutane. He was aware of the “Pregnancy Protection Mainpro-C Program (“PPP”) that doctors are supposed to implement before prescribing the drug to women of childbearing potential. This involves a recommendation that two reliable forms of contraception be used simultaneously for at least one month before Accutane treatment, during treatment, and at least one month following discontinuation. Despite this knowledge, Dr. Ramji determined that Paxton’s husband had an effective vasectomy 4 ½ years earlier and that she had no other sexual partners. Paxton took the drug for two months and became pregnant approximately one month after the use.

Paxton’s child was born with severe disabilities. Paxton appealed the trial judge’s finding that the respondent doctor met the standard of care. Dr. Ramji cross-appealed the conclusion that he owed a duty of care to the appellant before or after conception.

The Court held that Dr. Ramji did not owe Jamie Paxton a duty of care. Accordingly, it did not consider whether standard of care was met. The child’s appeal was dismissed.The Court held that to determine whether Dr. Ramji can be liable in negligence to Jaime Paxton, the relevant question is not whether her claim should be characterized as wrongful life, but rather whether the doctor owed the child a duty of care. Before the court could address the issue of whether the doctor breached his standard of care, it first needed to decide whether he owed a duty to the child in the first place.

Feldman J.A. applied the Anns test to determine if Dr. Ramji owed a duty of care to the child. He held that as long as there is potential for a future child to be born who could be affected by a teratogenic drug that is prescribed to the patient, then the first step of the Anns test is met. Harm to that future child is reasonably foreseeable.

The proximity requirement at stage one of the Anns test was not met. The doctor’s direct relationship and duty are to the female patient. That relationship prevents a relationship of the requisite proximity between the doctor and future child because the interests of the mother and fetus might conflict.

Even though the claim failed at the first stage of the Anns test, Feldman J.A. held that the claim would fail at the second stage even if proximity existed. The second stage concerns residual policy considerations. Recognizing the duty of care by a doctor to a future child of a patient would affect the doctor’s existing legal obligation to the patient.

Recognizing a duty of care by a doctor to a future child of a female patient would affect the doctor’s existing legal obligation, which is to the patient. Recognizing the proposed duty would also have implications for society as a whole for several reasons. One is that our legal and medical systems recognize that a woman has the right, in consultation with her doctor, to choose to abort a fetus. Imposing a duty of a care on a doctor to a future child would interfere with the exercise of that right. Another implication for society as a whole is that, until a child is born alive, a doctor must act in the best interests of the mother. This obligation is consistent with society’s recognition of the need to preserve a woman’s “’bodily integrity, privacy and autonomy rights". (Para 79)

It is for the legislature to consider and assess all of the policy issues and to determine whether and in what circumstances a remedy should be available to a child born with disabilities as a result of the conduct of the mother’s doctor, as well as the nature and extent of any remedy.” (Para 81)

“… a doctor owes a duty of care to the patient to properly prescribe Accutane and provide full information about the material risks that the drug poses to herself and to a future child if she were to become pregnant. If the doctor breaches that duty to the mother by failing to meet the standard of care for prescribing Accutane, the doctor will be liable to the mother for damages she suffers as a consequence of giving birth to a child with disabilities caused by the drug.” (Para 83)

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