In the first instalment of our new monthly legal advice column, Lonny J Rosen, a partner in the Health Law Group at Gardiner Roberts LLP answers your burning medical legal questions. Got a question for Lonny? Send it by email to health_lawyer@nationalreviewofmedicine.com or fax 514-397-0228.

I read in the papers about a recent case where a patient sued her obstetrician and was awarded over $12 million in damages for "wrongful life" after her fertility meds caused birth defects in her twins. The case sent chills down my spine as I'm an obstetrician and regularly prescribe the drug cited in the case. Now I'm nervous my patients could try to hold me responsible for complications. Could they?

Walking on Ova Shells

Dear Walking:
The case you're referring to is Bovingdon v Hergott, a 2006 Ontario Superior Court Decision. In this case, the defendant obstetrician (Dr Hergott) prescribed Clomid, a fertility drug, to address the plaintiff's difficulty conceiving. The plaintiff (Ms Bovingdon) ultimately became pregnant and prematurely gave birth to twins, who suffer from cerebral palsy and other disabilities.

In the past, most actions for "wrongful life" have failed on public policy grounds, on the basis that courts were reluctant to accept the argument from children that "but for the negligence, I would not be alive today." The trial judge ruled that the case was not an action for "wrongful life" but a question of whether a doctor communicated a material risk of a drug to a patient. The jury concluded that Dr Hergott had not adequately warned Ms Bovingdon of the risks and that a reasonable person in her circumstances would not have taken Clomid if advised of the risks. The jury awarded the Bovingdon family $12,575,000 in damages.

This decision underscores the importance of ensuring that patients give their informed consent to any treatment proposed. This means acquainting the patient with all material risks and side effects, and any other important information (ie alternatives to the treatment being proposed). A risk which is "a mere possibility" doesn't usually have to be disclosed, but a risk that could result in serious consequences, such as paralysis or even death, should be treated as a material risk and should be disclosed.

This case is also a reminder that physicians should always be careful to document the informed consent discussion, including the fact that the patient had the opportunity to ask questions and that those questions were answered to the patient's satisfaction. Dr Hergott is appealing this decision, but regardless of whether the decision is upheld, the law regarding consent to treatment will not be affected.

I'm the Medical Director of a group practice. I recently fired our receptionist, who had a history of disruptive behaviour. Now she's taking us to a wrongful dismissal tribunal and I have to represent our group at the hearing. The other physicians and staff are refusing to testify, even though they were all at the receiving end of her inappropriate behaviour. Can I have them subpoenaed? And if I don't, what are my options?

Solo in a Small Town

Dear Solo
I take it that you dismissed your former receptionist "for cause" and did not provide her with any termination pay. I also assume that an Employment Standards Officer has already investigated the complaint and awarded termination pay, and you or your former receptionist has elected to appeal the Officer's decision to the Ontario Labour Relations Board. If you proceed to an OLRB hearing, then you can call and subpoena witnesses, including the clinic staff. Although such witnesses will be sworn to tell the truth, it's difficult to overcome the problems posed by un-cooperative witnesses. This fact underscores the importance of documenting issues with an employee prior to termination. If you don't call your colleagues as witnesses or if the receptionist's employment record doesn't clearly support the decision to dismiss her for cause, you may wish to attempt to resolve the matter with the receptionist or her lawyer.

Lonny Rosen can be reached directly by phone (416-369-4345). Send your questions to health_lawyer@nationalreviewofmedicine.com or fax (514) 397-0228