Ontario’s Highest Court: Ob/Gyns Owe Care to Unborn Child



June 23, 2010

By Patrick B. Craine TORONTO, Ontario, June 21, 2010 ( – Ontario’s highest court has confirmed that obstetricians are charged with caring for the unborn child as well as his or her mother.  In a Thursday ruling the Ontario Court of Appeal upheld the judgment of the Ontario Superior Court in a preliminary hearing to a malpractice suit filed against Guelph General Hospital by the Liebig family.

In an unanimous decision, the five-judge panel denied the appeal based on the “very long and well-established” legal precedent that an infant “may sue for damages sustained as a result of the negligence of health care providers during labour and delivery.”

The Liebig family alleges that the hospital and their obstetric team were negligent in the 2001 birth of their son, Kevin, who suffered brain damage due to oxygen deprivation during delivery. He later developed cerebral palsy.  They claim that medical staff gave mother Susan too much oxytocin during delivery without adequate monitoring.

The defendants have argued, however, that obstetricians’ duty of care is restricted to the mother, and that they are not charged with caring for the unborn child. The question has been taken up as a point of law before the case begins.

Justice Wolfram Tausendfreund of the Ontario Superior Court ruled on October 14 that “the existence of the duty of care owed by physicians and nurses to a fetus has been recognized by numerous trial decisions across Canada.”

He also suggested that an established medical practice such as fetal monitoring would be absurd if the unborn child were not also in their care.  “Rhetorically, I must ask why the medical profession would see the need for such fetal monitoring, but not for the recognition of the obligation to both mother and the fetus during the labour and delivery process?”

The hospital has based their claim on two recent cases brought before the Ontario Court of Appeal – Bovingdon v. Hergott (2008) and Paxton v. Ramji (2008).  Both cases involved a doctor prescribing drugs to a woman before she had conceived, and in both instances the physician was found not to be negligent for the damage done to the child before birth.  In the Paxton case, the Court decided that the doctor “did not owe a duty of care to the future child,” and defined “future child” as “a child subsequently born.”

The hospital argued that these two cases represented a change in the law that is relevant to the current case.

But in their six-page decision on Thursday, the Court emphasized that these cases dealt with a “future child,” i.e. one not yet conceived.  “Both Bovingdon and Paxton dealt with the situation of a doctor prescribing drugs to a woman who was not pregnant at the time,” they stated.

The Court admitted, however, that the two cases may be deemed relevant for cases similar to this one in the future, and declined to lay down any general principles or “sweeping statements.”

“A common law court should be cautious about laying down principles or rules that are not required to decide the case before it and ordinarily should limit itself to the requirements of the case at hand,” they wrote.  “As we can decide this case on the basis of established case law, in keeping with the tradition and spirit of the common law, we refrain from doing any more.”

Find the Ontario Court of Appeal ruling here.

See related coverage:

Judge Rules that Obstetricians Have a Duty of Care to the Unborn

Do Obstetricians Have a Duty of Care to the Unborn? Ontario Court Decides to Reserve Judgment on Case Until October
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