Wednesday, October 15, 2008

Disabled kid can't sue the doctor responsible for the disability - in Canada

This is one of those 'I'm not a lawyer, but ...' type posts. Today's GLOBE&MAIL has a report about a court case in Canada. Basically a doctor prescribed an acne medicine that was known to lead to birth defects to a pregnant woman. The woman eventually gave birth to a disabled newborn (an ear missing, part of the newborn's face is paralysed).

The court's judgment rests on two claims: 1) 'because the woman and her fetus are one - both physically and legally - it is the woman whom the doctor advises and who makes the treatment decisions affecting herself and her future child.' This doesn't seem entirely unreasonable. 2) The second claim is that 'granting a child the right to sure doctors for damage caused before birth would also interfere with a woman's right to an abortion'. This seems truly implausible. One can hold consistently that fetuses do not have a right to be (ie grant women a right to abort for whatever reason they see fit), and at the same time that if the pregnant woman decides knowingly and voluntarily to carry it to term that certain duties of care are owed to it, eg the duty to offer it the best possible shot at a life worth living. Anita Kleinsmidt and I have advanced this argument (admittedly in a different context) in the American Journal of Public Health.

There is no contradiction in this point of view, because one can hold the view that moral standing begins at the moment of birth (or viability). However, if the pregnant woman decides not to avail herself of the option of abortion, it's highly probably that a viable child will be born. Any action undertaken by the mother that would reduce such off-spring's best possible shot at a life worth living would require very good reasons (eg the mother's life and future well-being at risk).

The doctor should have inquired whether or not there was a pregnancy prior to prescribing the medicine and/or it would have been necessary for him/her to inform the pregnant woman of the risk of birth defects in case the medicine is taken during pregnancy. The GLOBE&MAIL article seems to imply that the pregnant women did not give informed consent to this risk, because she wasn't informed as she should have been. The doctor clearly erred in his professional obligations both to the mother as well as to the fetus she decided to carry to term (unaware of the risk she subjected the fetus to, due to the doctor's negligence) if she/he failed to elicit informed consent from the pregnant woman at the time. For that reason it is surprising that the Court should have ruled that the child has no case against the doctor.

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