Mrs. Beverely Fredette, now 25, a happily-married mother of seven-year-. old twin daughters and a 20-month-old baby, seeks damages against a doctor who performed an unsuccessful therapeutic abortion on her in an attempt to end the pregnancy which resulted in the birth of her twins.

At the time of the operation the plaintiff-who I shall for convenience refer to by her first name-was single, a 17-year-old high school student who had become pregnant the previous month during a reunion with her then boyfriend. She felt she was in no position to have a child and she went to see the defendant, a Vancouver general practitioner, in the hope of getting an abortion. Dr. Ellen Wiebe had by then done only about ten unsupervised abortion operations.

Dr. Wiebe promptly obtained the necessary medical certificates and the approval of the therapeutic abortion committee at Shaughenessy Hospital, and carried out the operation there on December 22, 1978.

(a) Negligence of the Parties

The abortion was done by a suction and curettage procedure which is said to be a relatively simple operation performed as day surgery; the procedure is one which can be used only during the first 15 weeks of pregnancy and it is said to have a failure rate of less than one-in-100.

There is no evidence of negligence in the manner in which the operation was performed by the defendant. The allegations of substance, on both sides, relate to the failure thereafter to discover promptly that the procedure had failed. The plaintiff says that by failing to give her timely warning that it had failed, Dr. Wiebe deprived her of the opportunity of having a second abortion when it could have been done by the same procedure and when she would have consented to it. The defendant says it was as a result of the plaintiff's own negligence that she did not promptly discover she was still pregnant.

I find that after she performed the operation Dr. Wiebe told Beverley to make an appointment to have a post-operative examination in one to two weeks time, that Beverley told the doctor she was going to her parents' home at Masset, in the Queen Charlotte Islands, for the Christmas holidays, and that Dr. Wiebe told her to see a doctor there if she had any problems, such as bleeding, during the holidays. While there is no suggestion that Dr.Wiebe told Beverley the operation might not be successful, or that she needed the post-operative check-up so as to know whether it had succeeded, I find that Dr. Wiebe did tell her to come in for a check-up and that it was understood she would do so when she returned to Vancouver in two weeks time. I do not believe Dr. Wiebe suggested she see a doctor only if she had problems, or that she have her check-up at Masset.

The post-operative check-up following such procedures is one of two safeguards relied on to identify cases in which complications may develop or in which the procedure may have failed. The second safeguard is the routine laboratory examination of tissue removed by the operation.

The first safeguard failed in Beverley's case because she never returned for her checkups. The second safeguard failed because Dr. Wiebe never examined the laboratory report on the tissue she had removed.

Beverley said in evidence she went to see a military doctor at the armed forces base at Masset during her Christmas visit. She said she told him she had undergone an abortion, answered his questions about how she felt, and was told that everything was all right. She said the doctor conducted no examination, but that she thought this visit sufficient to satisfy Dr. Wiebe's instructions regarding post-operative care. She had no idea of the doctor's name and there is no mention of any such visit by her in the base medical records.

I do not accept the evidence of the plaintiff with respect to this consultation at the base clinic. If she saw a doctor at the base at all, I do not believe she asked him for a post-abortion check-up.

What, then, of the pathologist's report? The tissue removed during the operation was sent to the laboratory in the ordinary way. It was examined and reported on by the pathologist before the end of December and copies of the report went to Dr. Wiebe and to Beverley's hospital chart.

Dr. Wiebe's copy unfortunately arrived around the time she was moving her practice from the clinic at which she had been working to a new office of her own. She says she never saw it. But at some time - probably during January - Dr. Wiebe signed her report of the operation on Beverley's chart at the hospital. At that time she had the opportunity to examine the pathology report, or to discover that it was not there and to pursue it. Unfortunately, she did neither. Dr. Wiebe signed off Beverley's case without having seen the pathology report.

The practice normally followed during an abortion is for all the tissue removed to be put into a specimen bag and sent to the laboratory. The report in Beverley's case shows that only a very small amount of tissue was received, that all of it was examined and that there was no fetal tissue at all. I find this should have been a clear warning the procedure had probably failed.

I find that Beverley was negligent in failing to arrange for the Post- operative check-up by Dr. Wiebe which she had been told she should have. Had she had it she would have then learned that she was still pregnant.

I find the doctor was negligent in failing to ensure that she examined the pathology report, and particularly in signing off the operative report without seeing it.

I find that a careful general practitioner would have seen the report not later than four weeks after the operation-the date by which the operative report has to be completed according to the Shaughnessy Hospital practice - and probably well before that, and would immediately have warned the patient and have examined her or, at least, have had her take a pregnancy test.

Had that been done in this case It would have resulted in Beverley finding out she was still pregnant before the ninth week of her pregnancy, while the original operation could have been repeated. At that stage I believe the plaintiff would probably have consented to a second operation.

(b) Allegations Against Non-Parties

The defence contends that there are two doctors not parties to this action whose conduct either severed Dr. Wiebe's causal connection with the birth of the twins or amounted to contributory negligence reducing the extent of her potential liability- these are the military base doctor who the plaintiff says she spoke to in early January, 1979, and a civilian doctor at Masset who examined her a little over a month later, in mid-February, without discovering she was pregnant.

I have found that if the plaintiff did in fact see a doctor at the base clinic she did not ask him for a post-al>ortion check-up. It follows that I can make no finding of negligence against that unidentified physician.

With respect to the civilian doctor in Masset, who examined Beverley on February 16, 1979, without diagnosing the continuing pregnancy, the court is asked to deal with an allegation of negligence against a named doctor without that doctor having any sort of an opportunity to reply. There is said to be authority for the proposition that contributory negligence may be attributed to a non-party for the purpose of reducing the potential liability of a named defendant in circumstances in which liability of co-tortfeasors would be several. I do not, however, regard that proposition as entirely free from doubt. But it is at least clear that a defendant may raise the defence novus actus interveniens by pointing to someone not a party to the action, as does the defendant in this case.

The allegation of negligence against this Masset doctor is based on a handwritten note of what are said to be his observations and diagnosis following the examination of February 16, 1979. This note is said to show that the doctor overlooked obvious symptoms of pregnancy-then in about its 13th week - and negligently concluded that Beverley was suffering from a hormonal imbalance.

Because the defendant chose not to call the doctor concerned, I have no evidence before me of the meaning of these notes, which are not easy to follow and certainly to some extent contradictory. I draw no inference adverse to the plaintiff from failure to call the doctor. This is a matter on which the defendant bears the onus of proof and the defendant could readily have called him. Without an explanation of the doctor's notes I am not prepared to accept the interpretation which the defendant puts on them. I think it likely there were some factors not mentioned in these notes which influenced the doctor in reaching his diagnosis. I could not find the doctor negligent merely because he assumed the abortion had been properly and effectively carried out by the defendant.

It follows that the defence novus actus interveniens and the allegations of contributory negligence against non-parties must both fail.

(c) Mitigation

The defendant maintains that the plaintiff failed to mitigate her damages when she at last discovered, in mid-March, 1979, in her 17th or 18th week of pregnancy, that the abortion had failed.

Defence counsel contends that she should then have had a second abortion, either in British Columbia, where they are done up to the 20th week of pregnancy, or in the adjoining State of Washington where therapeutic abortions are said to be available up to the 24th week, or, alternatively, should have had the twins and offered them for adoption at birth.

These are said to be things a reasonable woman in her position would do to mitigate her loss and that the plaintiff is therefore entitled only to such damages as she could have proved had she done one or other of them.

By the time she discovered that the abortion had failed Beverley was close to the half-way point in her pregnancy. It might be said that morally-and perhaps logically, too-termination of pregnancy would amount to the same thing then as at the five-week stage when she had her original operation. But the law must be concerned rather with the way in which a normal, reasonable woman would be likely to view that matter-with how a woman's mind is likely to work in fact rather than with how someone might say it ought to work.

I find that the plaintiff was unwilling to consider the possibility of abortion at that point. I accept Dr. Sutter's evidence that she decided on having the baby, as she then believed, even before she underwent ultra-sound examination and discovered- -that is to say actually saw-that she was carrying twins. From that point on she was determined to have and keep these children.

If Beverley had enquired into the possibilities of abortion at that stage she would have learned that it was by then too late to repeat the procedure which she had undergone three months earlier. She would have found out that an abortion performed after 16 weeks of pregnancy must be done by a more radical process, a procedure involving the induction of premature Labour with the patient fully conscious. I accept the medical evidence that this procedure tends, both physically and psychologically, to be a far more distressing experience for the patient.

I do not accept the defendant's contention that it would be reasonable to expect that a woman who was willing to undergo an abortion at five weeks would still be willing to have an abortion three months later.

I find the defendant's contention that Beverley ought to have offered the twins for adoption at birth is open to similar objection.

I must do the best I can, in deciding the probable reaction of the ordinary reasonable woman, by relying on what I believe to be reasonable inferences from the evidence, including the evidence of the plaintiff. On the basis of the evidence I have concluded that the advance of pregnancy may be expected to be accompanied by progressive development in the expectant mother of a need to bear the child-the need to have, to know and to raise the child-which may not necessarily have been felt at all earlier in the pregnancy.

I think it is for this reason wrong to say of a woman who seeks an abortion in the early stage of pregnancy and at a later stage decides to bear and keep her child that she has simply "changed her mind". It will certainly be true that her mind has changed. That change is likely to a large extent to be caused, I think, by a process linked to the physical advance in her pregnancy.

I am for this reason unable to accept the contention advanced by the defence that a reasonable woman in Beverley's position would have undergone a second abortion operation on discovering she was still pregnant in mid-March, 1979, or would have offered the twins for adoption when they were born. I find that her change in attitude was foreseeable, was not inconsistent and was, in essence, a reasonable response to her changing state of pregnancy.

It follows that the allegations of failure to mitigate must fail.

(d) The 'Public Policy' Issue

I have said, at the outset, that the plaintiff is now 25, happily married and the mother of three children; I suppose she should today properly be numbered among the more fortunate women of her age.

In no sense is the plaintiff unhappy she has the twins-she is as pleased with them as any mother would be.

She says it was a harrowing experience to bear them at 17 years of age, with no financial resources, when she was trying to complete high school and with no spouse to help her. This is not, like most.of the reported "wrongful birth" cases, a case of a married woman who has had to bear one child too many. It is the case of an unmarried teenager who had to bear two children too soon.

The defendant relies on several Canadian, English and United States cases in which courts have refused damages for the birth or raising a child born as a result of medical negligence: Colp v. Ringrose (1976) unreported #84474 (Alta. S.C.); Doiron v. Orr (1978) 86 D.L.R.(3d) 719 (Ont. H.C.); Ferland v. Teran (1981) unreported (Alta. B.); Udale v. Bloomsbury [19831 2 All E.R. 522 (Q.B.); Beardsley v. Wierdsma 650 P 2d 288 (1982) (Wyo. S.C.); Coleman v. Garrison 327 A 2d 758 (1974) (Del S.C.); Rieok v. Medical Protective Co. 219 N.W.2d 242 (1974) (Wisc. S.C.); Wilbur v. Kerr 628 S 2d 568 (1982) (Ark. S.C.).

In all of these cases the plaintiffs had decided to have no more children, had undergone a sterilization operation and had subsequently found themselves with, so to speak, one child too many. The courts were concerned with the possible effects on the child's mind of being judicially declared to be 'unwanted" by the parents, the difficulty of setting off the benefits of parenting against its emotional and financial burdens, the danger of encouraging doctors to advise abortion in such situations, and whether the law can ever declare a life to be "damage".

Not all courts, however, have found these considerations a bar to recovery: see the English Court of Appeal decisions in Emeh v. Kensington [1984] 3 ll E.R. 1044 (C.A.) and Thake v. Maurise [1986] 2 W.L.R. 337 (C.A.).

The evidence in this case suggests that if the abortion had been successful the plaintiff would have decided to have more than the one child she now has had by her husband. Thus she would in any event have been faced with the cost of raising one or two other children-including time off work and child rearing expenses-as wen as the difficulties and anxieties of motherhood. She would in any event have received all the benefits of motherhood.

The only thing she would not have experienced is the harrowing experience of being a 17 year-old, impecunious single parent.

The fact that the plaintiff is glad she has these twins, and that they could not, of course, have been born under any other circumstances or at any other time, does not, in my view, mean she has no claim for the extra burden of bearing and caring for them under those unfortunate circumstances.

The plaintiff said in her evidence, she has no concern that the twins may one day hear about this lawsuit. She said she intends, in fact, when they are old enough to understand, to explain it to them herself. I presume that she feels she can safely do so because her claim is in respect of the extra burden cast on her in having had them when she did, and in no sense based on any reluctance to have them, or to have them as they are.

I therefore find it is open to the court, on the facts of this case, to award more than nominal damages for the birth of the twins.

(e) Damages

The children were born by caesarian section on July 14, 1979, and one, Cassandra, was found to have a congenital heart defect, a problem which is unrelated to the failed abortion.

For a few weeks the three lived with Beverley's parents at Masset, but this did not work well. In the late fall the plaintiff got a place of her own and borrowed $3,000 from her mother to keep them going. Eventually she had to turn to welfare for support. Her lonely ordeal during the next few months, particularly because of Cassandrals life-threatening condition, which required h"eart surgery, proved to be about as much as Beverley could handle, and her anxieties undoubtedly contributed to the development of a stomach problem.

In the spring of 1981, about 18 months after the birth of the twins, the plaintiff entered into a relationship with the young man who is now her husband. In November of that year they were married and shortly thereafter she had a miscarriage. It was not until almost three years later that Beverley gave birth to her third child. This was a planned baby and, she says, her last.

Since at least the time of their marriage her husband has supported the twins, and he intends to adopt them.

I find that Beverley's damages ceased at the time of her marriage. I find her circumstances today are substantially what they would probably by now have been in any event. I find that her damages lie in having her first two children under those very difficult circumstances.

I find the evidence falls far short of establishing that Beverley has suffered, or will suffer, any loss of earnings as a result of having children sooner than she would otherwise have done. I find the assumptions on which damages are claimed for past loss of earnings and "delayed entry into the workforce" are altogether too speculative. It cannot, in my view, reasonably be said that her entry into the workforce has been delayed in a way which has proved, or is likely to prove, more costly to her than would have been the case had the 1978 abortion been promptly and successfully repeated, and had she thereafter married and had two or three children, as I think she would by now have done.

In this regard it seems to me impossible to say that but for the birth of the twins the plaintiff would have commenced some form of post-secondary education which is now closed to her, rather than taking an unskilled job or embarking on marriage and child-bearing. I think it equally likely that the plaintiff will in fact be better off, so far as lifetime earnings are concerned, as a result of her child bearing having been finished by the age of 23.

The expenses of raising the twins have been borne partly from public funds, partly and quite voluntarily-by Mr. Fredette. But these are essentially costs which would have been incurred in any event had the plaintiff borne two or three children, as I think she would. Insofar as the expenses have been, or will be, greater because one of the twins has a heart condition, it would not be proper-And certainly not consistent with the position which the plaintiff has taken-that these extra costs be attributed to the failed abortion. I take the plaintiff's case to be that she accepts these children without reservation, as they are.

It follows that the plaintiff's recovery must be limited to such non- pecuniary damages as she has proved.

(f) Conclusion

I find the plaintiff entitled to non-pecuniary damages for the additional anxiety, inconvenience, physical suffering, loss of amenities and loss of enjoyment of life resulting from her pregnancy and the birth of the children having taken place in the circumstances described, for her understandable concern that the twins might have been injured by the failed abortion and for the additional difficulties which she faced in caring for them for approximately the first 18 months.

I assess those damages at $20,000. I find the parties equally at fault.

There will therefore be judgment for $10,000.

The plaintiff will also have pre-judgment interest at 5 per-cent per annum from March 16, 1979, when the continuing pregnancy was discovered, to this date, and her costs of the action without reduction or set-off.

Vancouver,B.C.
June 19, 1986.