Hypothetical by Manny Wood published on 11 July 2020.

In 2018, Denise sought the help of Dr Thompson to become pregnant through IVF.

During their initial consultation, Denise advised the Doctor that she did not want a twin pregnancy. Dr Thompson stressed that unless he transferred two embryos, the chance of falling pregnant would be very low. Denise accepted that risk and instructed the Doctor to transfer one embryo only.

It was ordinary protocol for IVF patients to instruct the clinic’s embryologist, as well as their Doctor, about the number of embryos they wished to be transferred. The three parties would then have a conference confirming the patient’s wishes.

Unfortunately, Dr Thompson failed to inform Denise of this protocol. The three-way conference did not take place either, as Denise elected to undergo sedation prior to the procedure. As a result, Denise was not given the opportunity to inform the embryologist of her wishes. The embryologist proceeded by transferring two embryos in accordance with default clinic policy.

Denise fell pregnant with twins and brought an action in negligence against Dr Thompson. She argued that had she been properly advised of her communication obligations, the embryologist would have known not to implant two embryos during the procedure.

She claimed damages for psychological injury arising from an unwanted twin pregnancy and the cost of raising the additional child. Dr Thompson argued that he was not responsible for controlling the communication of Denise’s instructions to the embryologist and was therefore not negligent.

The Court held that Dr Thompson had a duty to not only do all that was reasonable to ensure Denise’s successful pregnancy, but to ensure the procedure was performed in accordance with Denise’s wishes.  This extended to confirming the number of embryos for transfer with other clinic staff.

Denise was awarded compensation of $80,990.59 for her psychological injury and a further $236,495.00 for the costs of raising the additional child.

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