When, if ever, do physicians owe a duty of care to the unborn children of their female patients? In Paxton v. Ramji, 2008 ONCA 697 (CanLII), the Ontario Court of Appeal held that physicians never owe such a duty to the future children of their female patients, as imposing such a duty carries the potential for irreconcilable conflict between the mother and her future child and makes an inroad to women’s autonomy. The plaintiffs have sought leave to the appeal to the Supreme Court of Canada.

The plaintiffs alleged that Dr. Ramji negligently prescribed Accutane, an acne medication with teratogenic effects, to Dawn Paxton. The Accutane caused serious defects to her future child, Jaime Paxton. Jaime was not conceived when Accutane was prescribed to her mother. The trial judge held that Dr. Ramji owed a duty of care to Jaime that required him to satisfy himself that Dawn Paxton would not become pregnant while taking Accutane. The trial judge concluded that Dr. Ramji had fulfilled this duty, since he was aware that Dawn Paxton’s spouse had had a vasectomy almost five years earlier.

The plaintiffs appealed the trial judge’s decision that Dr. Ramji had satisfied his duty to Jaime. Dr. Ramji appealed the finding that he owed a duty of care to Jaime Paxton. The unanimous Court concluded that "until a child is born alive, the physician must act in the best interest of the mother [the patient]."

The Court held that whether conceived or not, a duty of care could never be owed from physicians to the future children of their female patients. The physician would often have to choose between the interests of the mother and those of her unborn child, and this could result in physicians putting future children’s needs before those of their patients.

Moreover, the court stated that in law, women do not owe a duty to their future children. For example, a woman may abuse substances while seven months pregnant. If her child is born with birth defects as result, the child cannot sue the mother. Imposing a duty on physicians to the future child curtails a woman’s ability to freely make choices about her body by reference to the future child.

McCarthy Tétrault Notes:

The Ramji decision has the potential to profoundly affect the legal and medical professions. If a physician owes only a duty to the mother until the "child is born alive," then only parents will be able to recover for conduct that harms their child prior to birth. The difficult cases are those in which a future child is injured during birth — because of aggressive use of forceps, for example. The judiciary will likely be resistant to denying compensation to the child. Currently, children harmed prior to birth are able to recover compensation for future care expenses and loss of income for the duration of their life expectancy. Generally, parents can recover for future care costs only to the age of majority. Needless to say, the medical and legal professions will be monitoring Ramji closely.