When Can You Sue Your Fertility Doctor For Malpractice?

If you and your spouse are struggling with fertility issues while wishing for a child of your own, you're not alone -- it's estimated that more than 16 percent of Canadian couples have some type of diagnosed infertility. With recent advances in reproductive technology, your desire for a biological child may be within reach. However, these technologies often come hand-in-hand with potential medical complications; and recently, several fertility physicians have come under fire for engaging in what some would call unethical behavior. Read on to learn more about the situations in which you may have a malpractice claim against your fertility specialist or reproductive physician. 

What types of fertility-related malpractice are most common?

In general, medical malpractice refers to the breach of a duty of care by a physician, nurse, or other care provider. To prove that you've been the victim of malpractice, you'll need to establish that the physician owed you a duty of care, and that the physician's actions constituted a breach of that duty. To recover financial compensation, you'll also need to demonstrate that the physician's actions (or inaction) caused you to suffer financial harm or cost you money.

Several recent public fertility malpractice cases include the case of American "Octomom" Nadya Suleman, whose physician implanted a whopping 12 embryos instead of the industry-standard two or three (source). As a result, Ms. Suleman was forced to undergo a tremendous strain not only on her body, but on her finances and mental health after carrying and delivering eight babies. Due to their small size, several of these octuplets continue to suffer from delays in motor skills and neurological function. This physician has since lost his license to practice medicine, and settled with Ms. Suleman for an undisclosed amount.

Although not all malpractice cases are quite so shocking or spectacular, over-implantation can be common -- leading to the birth of twins or triplets when you were only expecting one baby. Another potential complication of fertility treatment is the risk of a false negative on a pregnancy test. In some situations, doctors who believe their patients are no longer pregnant will advise the cessation of any fertility drugs. If this advice is based on a false negative pregnancy test, you may suffer a miscarriage or permanent harm to your baby after you stop taking these drugs.

What should you do if you believe you have a malpractice claim?

In either of the above situations, you should be able to demonstrate that your doctor breached the necessary standard of care and that this breach caused you physical, emotional, and financial injury.

If your situation is more nuanced, you should consult a personal injury lawyer or medical malpractice attorney. This attorney will be able to evaluate the facts of your specific situation to let you know whether you have a cognizable claim against your doctor, nurses, or the hospital in general. Your attorney will also be able to let you know what types of documentation you should be collecting, and whether you or your spouse will need to testify about the effect your doctor's action (or inaction) has had on your daily life.

Depending upon the severity of the malpractice claim, you may be able to choose to go through a court trial or take the case to mediation. There can be tactical advantages to either method, which your attorney should be able to clearly explain. Generally, if you feel your case is unusual enough to change the status of Canadian law, or you feel you would be sympathetically portrayed by the media, it might be worthwhile to file the case in court and create legal precedent. If you feel your case is less "flashy," you may be able to achieve your goals through mediation.