Saturday, October 17, 2009

Ontario Superior Court: Hospital Has Duty Of Care To The Unborn

Ontario’s Superior Court of Justice has ruled that Guelph General Hospital did owe a duty of care to an unborn child whose family claims that negligence during the baby’s delivery led to brain damage.

In a decision released Wednesday, Justice Wolfram Tausendfreund rejected an argument from Guelph General Hospital, three obstetricians and four obstetrical nurses that they had no such obligation in the case of Kevin Liebig, who was born eight years ago with hypoxic ischemic encephalopathy, or brain damage cause by oxygen deprivation.

“The duty to both mother and fetus in the maternal-fetal care scenario has long been established in Canadian jurisprudence,” he wrote.
The defendants argued that their professional obligation extended only to Susan and not to her unborn child.

They cited a decision that came down last year from the Ontario Court of Appeal, which found that doctors cannot owe a duty of care to unconceived children because their primary obligation is to their female patients.
But in his decision, Tausendfreund said the two cases are entirely different.
In other words, the unborn is, in fact, a patient. And, by acknowledging the difference from the other case, according to which, doctors cannot owe a duty of care to a child prior to conception (obviously, they could never know when a woman might become pregnant,) the court has in fact admitted that life begins at conception. So, even if the law doesn't yet recognize the unborn as a person, the hospital still owes a duty of care to the baby.

Too bad this only applies to wanted babies:
It's interesting that in Canadian Law, for the purposes of abortion, mother and fetus are one. But for delivery, they are not.
Hopefully, thanks to the recent ruling, we may see that changed. Hopefully, we can look forward for the judges and the lawmakers to acknowledge the self-evident truth: that a mother and her unborn baby are not just two separate patients, but also - two separate persons, both entitled to equal protection of the law.

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