A recent case in the law reports involved tainted family cereal. The case settled out of court. The cereal was contaminated with muscle tissue of some kind that proved to be chicken. This would be a case that fits into the category of tort cases concerning product or manufacturer's liability. There is no reason to assess whether or not there is a duty of care in such cases as the law has accepted that there is a duty. In other cases, where the wrong suffered does not fit into a settled case scenario, the law requires an analysis as to whether or not there is sufficient proximity(nexus) to say that a duty of care is owed to the claimant and that there are no policy issues within the legal jurisdiction to prevent the applicability of tort law. But, before a victim can sue, he has to be a legal person or entity. This is discussed as follows in Paxton v. Ramji, 2008 ONCA 697:
"[38] The question of a doctor's legal proximity with a future child (whether conceived or not yet conceived) at the time of the doctor's impugned conduct has been considered by Canadian courts in a number of contexts. It is important to keep in mind that, in discussing a duty of care that may be owed to a future child, these types of claims only arise where the child is born alive, since only a child who is born alive can assert a cause of action. As McLachlin J. stated in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), 1997 CanLII 336 (SCC), [1997] 3 S.C.R. 925, [1997] S.C.J. No. 96, at p. 942 S.C.R.: "A child may sue in tort for injury caused before birth. However, only when the child is born does it have the legal status to sue and damages are assessed only as of the date of birth" (citations omitted). [See Note 8 below] [page416]"
In addition to this:
The potential for harm to a fetus while in utero from exposure to Accutane is clearly foreseeable.
However, policy considerations militate against a finding of the necessary proximity. If a doctor owes a duty of care to a future child of a female patient, the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best interests of the patient in deciding whether to prescribe a teratogenic drug or to give the patient the opportunity to choose to take such a drug. That conflict could have an undesirable chilling effect on doctors, who might be prompted to offer treatment to some female patients that might deprive them of their autonomy and freedom of informed choice in their medical care."
In other words, you must be an actual live birth and registered human being with legal status before you have the right to sue in most jurisdictions. Can you owe a duty of care to an unborn child? In some jurisdictions, the answer is yes. However, You must be a legal entity and not a mere chance or probability of existence in most jurisdictions before you can assert a duty of care in a court in a claim. An unborn child, a non-registered legal entity, cannot sue or be mentioned as a litigant in a claim. It is hard for a doctor to consult a probability but usually the doctor will advise of the health risks to a fetus if a drug is taken before a potential, un-actualized pregnancy. He can advise the non- pregnant, potential mother of the risks to a fetus. If he advised of the risks to a fetus if the drug is being taken during an actualised pregnancy, the doctor has fulfilled his duty of care to the only actual patient in his office; the potential, not yet pregnant, mother. In fact, the doctor in this dismissed case had to ensure that the mother was not capable of becoming pregnant or that her husband and partner certainly had a 4 1/2 year old vasectomy. The doctor fulfilled this duty. He is not to consider the probability of pregnancy by adultery, the purchase of semen or a naturally reversed vasectomy; the miracle of God. The notion of the plaintiff giving birth in this case was too remote to contemplate a future child and as such, a fetus or child who could be owed a duty of care in this case was not foreseeable. The claimant mother was beyond contemplated conception. There is insufficient proximity in this case between the unborn child and the doctor to levy a duty of care. A child was beyond contemplated conception. In most jurisdictions, such a duty is denied on policy grounds so that the doctor can consult the female patient, first and foremost, in his office as opposed to the female as a potential mother and her possibly un-contemplated, potential future child. If a fetus is contemplated by the mother, you could owe that fetus a duty of care but the fetus cannot sue unless born and registered as a legal entity. Even so, the duty of care may be denied on policy grounds. In any event, an unborn child is not an independent and actualized entity capable of a legal right or status. It is not a registered entity or legal person of any kind capable of asserting a concern or claim. A fetus can be owed a duty of care but it cannot actualize legal standing to make a claim unless it becomes an actual living entity. All jurisdictions indicate that a fetus cannot sue. You must be a living and registered entity. With an unborn fetus, the real issue is establishing that any duty is owed. in a particular case. This is to be decided on a case by case basis. The fetus or child cannot sue unless it is a live birth. After determining whether or not there is any duty of care in any line of cases, the question is whether the court will allow or deny the duty on policy grounds. There is no guaranty that a case involving injury to an unborn fetus will survive any policy analysis of the court.
Please see Paxton v. Ramji, 2008 ONCA 697 (CanLII) for more.
In other words, you must be an actual live birth and registered human being with legal status before you have the right to sue in most jurisdictions. Can you owe a duty of care to an unborn child? In some jurisdictions, the answer is yes. However, You must be a legal entity and not a mere chance or probability of existence in most jurisdictions before you can assert a duty of care in a court in a claim. An unborn child, a non-registered legal entity, cannot sue or be mentioned as a litigant in a claim. It is hard for a doctor to consult a probability but usually the doctor will advise of the health risks to a fetus if a drug is taken before a potential, un-actualized pregnancy. He can advise the non- pregnant, potential mother of the risks to a fetus. If he advised of the risks to a fetus if the drug is being taken during an actualised pregnancy, the doctor has fulfilled his duty of care to the only actual patient in his office; the potential, not yet pregnant, mother. In fact, the doctor in this dismissed case had to ensure that the mother was not capable of becoming pregnant or that her husband and partner certainly had a 4 1/2 year old vasectomy. The doctor fulfilled this duty. He is not to consider the probability of pregnancy by adultery, the purchase of semen or a naturally reversed vasectomy; the miracle of God. The notion of the plaintiff giving birth in this case was too remote to contemplate a future child and as such, a fetus or child who could be owed a duty of care in this case was not foreseeable. The claimant mother was beyond contemplated conception. There is insufficient proximity in this case between the unborn child and the doctor to levy a duty of care. A child was beyond contemplated conception. In most jurisdictions, such a duty is denied on policy grounds so that the doctor can consult the female patient, first and foremost, in his office as opposed to the female as a potential mother and her possibly un-contemplated, potential future child. If a fetus is contemplated by the mother, you could owe that fetus a duty of care but the fetus cannot sue unless born and registered as a legal entity. Even so, the duty of care may be denied on policy grounds. In any event, an unborn child is not an independent and actualized entity capable of a legal right or status. It is not a registered entity or legal person of any kind capable of asserting a concern or claim. A fetus can be owed a duty of care but it cannot actualize legal standing to make a claim unless it becomes an actual living entity. All jurisdictions indicate that a fetus cannot sue. You must be a living and registered entity. With an unborn fetus, the real issue is establishing that any duty is owed. in a particular case. This is to be decided on a case by case basis. The fetus or child cannot sue unless it is a live birth. After determining whether or not there is any duty of care in any line of cases, the question is whether the court will allow or deny the duty on policy grounds. There is no guaranty that a case involving injury to an unborn fetus will survive any policy analysis of the court.
Please see Paxton v. Ramji, 2008 ONCA 697 (CanLII) for more.
Comments
Post a Comment