Parents suing hospital for 'wrongful pregnancy'
Published Monday, May 27, 2019 10:00PM EDT
An Ontario family that ended up with a baby they didn’t plan for after a mishandled sterilization procedure is suing their hospital and doctors for $800,000, claiming the cost of raising their daughter shouldn’t fall on them alone.
The unusual case raises an important question about how unwanted pregnancies are handled in Canada. If a person suffers from a medical error with life-altering consequences, such as the loss of a limb, they almost always receive financial compensation. But if a family ends up with an extra baby, they’re often considered lucky.
That logic isn’t fair to parents struggling to make ends meet, and it effectively lets doctors off the hook for a serious medical mistake, the family said.
“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.
Parents Jim and Jen, who asked that their last names be withheld, decided in 2011 that they were happy with the size of their family. They had a five-year-old daughter, and twins on the way.
So Jen decided to have her tubes tied. The tubal ligation procedure was supposed to happen after she gave birth to the twins via C-section at Mount Sinai Hospital in Toronto.
The only problem: the procedure never happened. Jen didn’t realize until a few months later, and by then it was too late. At the age of 39, she was pregnant again.
“I was floored,” Jen said. “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 made the difficult decision to have an abortion. But, after booking the procedure, they decided they just couldn’t go through with it.
Their fourth daughter was born healthy in February 2013.
The parents said they love their daughter and plan to tell her the truth of what happened one day, when she is old enough to understand the full scope of the situation. For the time being, they’re focused on holding their doctors and the hospital accountable for what they consider a medical error.
“If a man got a woman pregnant, he would have to pay child support, right? So, isn’t this kind of the same thing?” Jim said.
After Jen realized she was pregnant, the hospital conducted an investigation. According to the parents, the probe revealed a troubling chain of miscommunication regarding the tubal ligation paperwork.
“The nurses missed it. The doctors missed it. The administration missed it,” Jim said. “Usually there are safety nets where one of them is going to catch it, but all of these little holes lined up perfect and we fell right through everything.”
The parents filed a wrongful pregnancy lawsuit against the hospital and their two obstetricians in 2013. They allege that the hospital and doctors were negligent in scheduling and performing the tubal ligation, and failed to advise Jen that the procedure wasn’t performed. They’re asking for $800,000 to cover the costs of raising their daughter.
In a statement of defense, the hospital said it "denies that there was any breach of duty want of care or negligence on its part.” Lawyers for the two doctors "deny the plaintiffs have suffered any damages."
The case is expected to go to trial next spring.
Wrongful pregnancy lawsuits have been argued in Canadian courts before. But when they involve healthy babies, the cases are often tossed out, or awarded little or nothing.
In a similar case in 1996, an Ontario family was awarded $40,000 for the pregnancy and lost wages – hardly enough to support a child for an extended period of time. The judge ruled at the time that the birth of the child did not “constitute a harm which inevitably leads to damages.”
Three years later, a similar case in the U.K. determined that, in wrongful birth cases in which a healthy child is born, no damages should be awarded to compensate for the cost of raising a child.
Critics say these sorts of decisions reflect an outdated view that having a child is a blessing, no matter if the parents planned for the child or if they can afford it. An article published in 2014 by University of Ottawa professor Bruce Feldthusen said the refusal to compensate parents for “reasonable child rearing expenses” constitutes discrimination.
“This discrimination is sometimes, perhaps often, perpetrated by judges who refuse to accept and protect a woman’s right to reproductive freedom. These mothers are under-compensated, and the medical establishment that failed them is under-deterred,” Feldthusen wrote.
A lawyer representing Jim and Jen described those sorts of decisions as “archaic.”
“There is no difference between a lawsuit that is being brought by Jen and Jim whose rights were infringed by medical error and that of any other victim of medical malpractice who sues because he or she has suffered losses and wants to be fully compensated,” said lawyer Tanya A. Pagliaroli from TAP Law in Toronto.
The parents said the lawsuit isn’t just about money. They hope to set a legal precedent that could help other families in similar situations. Ideally, they say, that’s how they’ll explain the story to their daughter one day.