By Patrick B. Craine

LONDON, Ontario, August 31, 2009 ( – After hearing arguments yesterday about whether an obstetrician has a duty of care to the unborn child, a London judge has opted to reserve judgment until sometime in October.  The issue was be taken up as a preliminary proceeding to a malpractice suit brought by a Rockford family against Guelph General Hospital, where their son was born eight years ago, reports the Toronto Star.

Kevin Liebig, 8, was born with hypoxic ischemic encephalopathy, a form of brain damage caused by oxygen deprivation.  Since then, he has been diagnosed with cerebral palsy.

His family, engaged in a seven-year legal battle with the hospital, blames his condition on the negligence of the health workers at the hospital, who they claim gave Kevin's mother, Susan, excessive amounts of oxytocin during his birth without appropriate monitoring.  The trial is scheduled to begin next September.

The hospital and the named health-care workers are arguing that an obstetrician does not owe duty of care to an unborn child.  They cite a decision from the Ontario Court of Appeal last October which found that doctors' primary obligation is to the mother, so they cannot owe duty of care to 'future children'.

That former case was brought by a young girl, Jamie Paxton, now 6, against her mother's physician.  Before Jamie was conceived, the doctor prescribed her mother acne medication, known to be dangerous to unborn babies.  The doctor made the prescription on the presumption that Jamie's mother would not get pregnant because her husband had had a vasectomy four and a half years prior; however, she did conceive.

In that case, the Court determined that the doctor in question “did not owe a duty of care to the future child.”  The Court defined 'future child' as “a child subsequently born,” including both children who are not yet conceived and children who are already conceived.

“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,” the justice wrote.  “The doctor's direct relationship and duty are to the female patient. That relationship and that duty of care prevent a relationship of the requisite proximity between the doctor and future child because the interests of the mother and her future child may possibly conflict.”

In the current case, court documents submitted by the Guelph hospital and health workers state, according to the Star, “The decision of (the) Ontario Court of Appeal … is the current law of Ontario with respect to whether a health care provider owes a duty of care to his/her patient's unborn child. The Court clearly stated that no such duty was owed.”

Responding to this claim, the Liebigs' lawyer, Barbara Legate, told the Toronto Star, “I think that's a jaw-dropping proposition and I bet you that most obstetricians wouldn't agree.”

According to Legate, the Paxton case is unconnected with the Liebigs.  “They are trying to take one legal concept and stretch it to cover off a completely different situation,” she contends.  “In the Paxton case, there was one patient and that was the mother. In an obstetrical-negligence case, such as Kevin's, there are two patients, the mom and fetus.”

Legate's motion, to be heard today before the Ontario Superior Court of Justice, maintains that the hospitals health-care practitioners did have a duty of care to Kevin during his birth.

Campaign Life Coalition's Mary Ellen Douglas concurred, calling the defendants' claim “bizarre.”  “Of course the doctor knows he has two patients when a woman is pregnant,” she told, “the baby and the mother.”



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