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Genetic disorder death parents may give up court fight

14 December 2009
Appeared in BioNews 538

A Canadian couple may be forced to drop their  malpractice claim against a hospital they claimed killed their daughter, who had a non-fatal genetic disorder. Annie Farlow, who had Trisomy 13, died in 2005 at 80 days old in Toronto's Hospital for Sick Children. Trisomy 13, also known as Patau's syndrome and trisomy D, is caused by an extra chromosome 13. This additional chromosome disrupts development causing, among other features characteristic of the syndrome, heart and kidney defects. It affects around one in 25,000 live births.

Parents Barbara and Timothy Farlow claimed the hospital 'provided medications to Annie which hastened her death' and 'practised a policy of non-treatment for infants with serious genetic disorders', according to Canada's National Post newspaper. In particular, they alleged the hospital placed a 'do not resuscitate' instruction on their daughter without their consent. The Farlows brought their case to the small claims court, seeking its maximum payout of $10,000, after unsuccessful attempts to have their case heard by the Chief Coroner of Ontario and the Ontario Human Rights Commission.

Representing themselves, they sought to change the hospital's policy on palliative care and care for infants with serious genetic conditions by, for example, providing compulsory training to physicians on consent laws, LifeSiteNews.com reports. But the small claims court ruled the case was too complicated and needed to move to the superior court. The couple argued that moving to the superior court would deny them justice because of the financial burden of the case, particularly a court ruling that they are not immune from future legal costs.

Ontario Superior Court Justice Thea Herman wrote that it was: 'difficult to determine whether the access to justice issue is about the cost to retain legal counsel, the potential for an adverse costs award, or the time and energy that would be required to pursue a claim in Superior Court', but hearing the case in a higher court would 'increase the likelihood that the court's ultimate disposition is based on a full and proper airing of all the evidence'.

'I appreciate that for the Farlows this case is not about money but is about systemic change', she said, adding: 'However, the remedies that Mrs Farlow articulated in court represent a significant broadening beyond the $10,000 sought in the existing claim'.

The Farlows have not decided on their next step. 'What will we do now? Drop the case? Appeal the decision? We honestly don't know', Mrs Farlow wrote in an email. She said her 'greatest disappointment' was she felt the judge 'failed to understand what we feel to the the significance of the issue'. They may need to end the litigation, Alex Schadenberg, executive director of Canada's Euthanasia Prevention Coalition (EPC), told LifeSiteNews. He said that 'due to the costs associated with taking a case like this to court, the Farlow family may be forced to drop the case, and yet this is a case that needs to be heard'.

SOURCES & REFERENCES
Couple lose court decision over baby's death
National Post |  30 November 2009
Parents Lose Malpractice Suit Against Toronto Sick Children's Hospital Over Baby Daughter's Death
LifeSiteNews.com |  30 November 2009
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