Mar 24, 2022 in News Medical Malpractice

Medical Malpractice: Fighting for the Legal Rights of Children

In October of 2021, we appeared before the Ontario Court of Appeal and asked that they consider whether our three minor clients, the Florence Triplets, should be given an opportunity to argue that they were owed a duty of care by their mother’s physician before they were conceived. The triplets were born very prematurely after their mother was put on a fertility drug that was not clinically appropriate. As a result of their prematurity, each one of the triplets has suffered extensive injury and cerebral palsy and requires extensive, lifelong care.

Our position at the appeal was simple: On a prior Rule 21 motion, Justice Wilson had struck the triplets’ claims without the necessary analysis, which could only be completed at a full trial. We argued that there had never been a categorical denial of the claims asserted by the Florence Triplets, as each case must be assessed in the context of the specific duty alleged and the specific facts. The majority of the ONCA panel disagreed. Fortunately, Justice Fairburn wrote a strong dissenting opinion in support of our position.

Since the Supreme Court of Canada has never addressed the issue of whether Canadian physicians may owe a duty of care to future children, we sought leave to pose exactly that question. Unfortunately, our leave application was denied. The impact of the SCC’s refusal is widespread across disability rights, healthcare policy, and ethics. 

The firm will continue to advocate for the mother and the extensive care needs that the children require. 

Click here to read the Court of Appeal Decision and to listen to Duncan Embury discuss the impacts of the Florence decision on Chris Rokosh’s medical negligence podcast.