Private Law Theory

ABSTRACT
The Ontario Superior Court of Justice has recently held that a paediatrician might owe a duty of care to a patient’s parents when performing genetic testing on the patient and communicating test results to the parents. The parents may be able to claim damages against the paediatrician for breach of this duty if, in reliance on a miscommunication about the test results, they conceive a subsequent child who is later born with a disability. I call the tort alleged by the parents in these circumstances a subspecies of ‘paediatric triangular torts’.

In this article, I demonstrate the conceptual feasibility of this tort. One challenge I confront is that imposition of a duty of care on the defendant may create a conflict between simultaneous duties owed to the patient and the plaintiff. Another is that it may expose the defendant to indeterminate liability. I argue, however, that these challenges can be overcome if we conceive of the tort as a form of negligent misrepresentation, where the paediatrician undertakes to carefully fulfill a duty already owed to the patient in the performance of genetic testing and the plaintiff is thereby induced to detrimentally rely on this undertaking by basing reproductive decisions concerning a subsequent child on the test results. In these circumstances, there is an alignment rather than a conflict of duties owed by the defendant, and the scope of the defendant’s liability is restricted to those to whom they undertook to properly perform genetic testing.

The conceptual structure of this ‘alignment thesis’ which I defend maintains that there should be a case-by-case exception to the general rule that a conflict of duties negates a novel duty of care where courts find that on the facts there is no conflict. But I explain how current authoritative jurisprudence on paediatric triangular torts is inhospitable to this structure because it denies that there can be any exceptions to the general rule and that the risk or potential for a conflict is alone sufficient to negate a duty of care. I therefore go on to raise doubts for this legal status quo. I argue that it is not evident that allowing courts to identify exceptions to the general rule will have negative consequences that are serious enough to negate a paediatrician’s duty of care to a patient’s parents for negligent genetic testing. In particular, this duty will not engender tort suits or damage awards that unjustly discriminate against persons with disabilities.

Sangiuliano, Anthony, Paediatricians’ Liability to Patients’ Parents for Negligent Genetic Testing (January 19, 2025). Forthcoming, Osgoode Hall Law Journal.