Personal Injury

‘Unwanted pregnancy’ case raises interesting med-mal issues

By Tony Poland, AdvocateDaily.com Associate Editor

Winning a medical malpractice claim can be a challenge even if it’s clear that a doctor has made a mistake, says Toronto personal injury lawyer Jessica Mahabir.

Mahabir, an associate with Derfel Injury Lawyers, points to a lawsuit filed by a Toronto couple who ended up with a baby after a mishandled sterilization procedure. They are suing the hospital and doctors for $800,000, claiming the cost of raising their daughter shouldn’t fall on them alone.

“I often get clients asking if they have a potential malpractice case and this is a good example that just because a doctor did a procedure incorrectly, doesn’t necessarily mean you will have a successful lawsuit,” she tells AdvocateDaily.com. “There are several different elements that come into play which go beyond whether a wrong was committed.”

According to CTV News, the Toronto woman gave birth to twins by caesarean section in 2011 and had requested tubal ligation because the couple had earlier decided they didn’t want to have any more children.

However, due to a “troubling chain of miscommunication,” the procedure wasn’t carried out, and a few months later, the woman discovered she was pregnant with her fourth child, CTV reports.

“I was floored,” the mother told CTV. “The twins were still 10 months old. I was in the thick of it. I couldn’t imagine being pregnant again, I couldn’t imagine having a newborn again. I didn’t want to be pregnant at all.”

The couple is now seeking $800,000 to cover the cost of raising the child, according to the report.

“Not that we don’t love her, not that we’re not happy, not that she’s not an important part of our family. She is everything and more, but it still doesn’t mitigate the fact that there are pragmatic costs to raising a child,” the mother told CTV News.

“If a man got a woman pregnant, he would have to pay child support, right? So, isn’t this kind of the same thing?” the father tells the news agency.

Mahabir says suing a doctor or hospital is not simply a matter of proving something went wrong.

“There’s something called the standard of care,” she explains. “Certain issues may arise during a surgery or procedure that may be unexpected, and the doctor will have to make spur-of-the-moment decisions based on that information.

“Doctors are not held to a standard of perfection. They just have to act as a normally appropriate doctor would have in the same circumstances.”

Mahabir says the couple’s lawsuit raises some interesting issues, particularly when it comes to claiming damages for the future care of the child.

“I think the courts have been very conservative in any awards that have been given in cases like these. If the child is born healthy, they don’t really see much of a case,” she says. “I think there’s a taboo around calling the birth of a child anything less than something happy and fortunate.

“People get uncomfortable when you say having a child is the damage that you’ve suffered.”

Mahabir says even though the hospital may have failed to inform the woman the procedure was not carried out, she wouldn’t be surprised if the case went to trial.

“In medical malpractice cases, each side will hire its own expert who will give an opinion about what the average doctor would do in similar circumstances and is this the conduct that is reasonable in those circumstances,” she says.

The court could also look at the procedure itself and the chances for success or failure and what followup the couple did to inquire about it after the birth, Mahabir says.

“While the doctor or hospital may have done something wrong, it’s not always cut and dried because of all other factors that come into play,” she says.

Mahabir says the family may have a difficult fight given the history of such cases.

“I think the couple is looking to set a precedent, and good on them for trying, but Canadian courts are conservative with these types of claims,” she says. “Just because something went wrong, doesn’t mean that it will be a slam-dunk case.”

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