First Injury Award of its kind - Surrogacy Fees

First Injury Award of this kind - Surrogacy Fees

April 13, 2017 - In a landmark decision of Madam Justice Sharma, the BC Supreme Court awarded crash victim Mikaela Wilhelmson significant damages in a claim that changed her life forever. 

See Case Link: Wilhelmson v. Dumma, 2017 BCSC 616

See Media Release Link: CBC News

The total damages awarded were $3,837,824.32.

The breakdown of the award is as follows:

• Pain and Suffering (non-pecuniary): $367,000
• Damages for Loss of Capacity to Earn Income and Loss of Interdependency: $2,450,000
• Cost of Future Care: $882,066
• $100,000 of which was for Surrogacy Fees
• In-trust Award: $50,000
• Special Damages: $88,758.32

This is a fascinating and ground breaking award for injury victims in BC. Cost of Future Care is an award designed to deal with future medical expenses post settlement or trial judgement. Philosophically, your lawyer should be advocating for compensation that is medically recommended and reasonable.  In the Wilhelmson case, this young injury victim could no no longer bare children and could reasonably be expected to incur future costs associated with paying a surrogate to have a biological child.  

The Court discussed this award starting at paragraph 366 and stated as follows:

Is She Entitled to Damages for Surrogacy Fees?

[366]     As stated above, I find that the best and safest way for Ms. Wilhelmson to have a biological child would be to use the services of a surrogate. Both parties agree that the loss of Ms. Wilhelmson’s ability to carry her own child is compensable. The plaintiff submits that the damages for cost of future care should include costs for a gestational carrier (a “surrogate”), as the accident has left her fertile but unable to carry her own child to term. The defendant submits that the plaintiff’s inability to have a child, together with the recent termination of a pregnancy, should be compensated only under the award for non-pecuniary damages.

[367]     I find the medical evidence overwhelmingly support the conclusion that a surrogate is medically necessary for Ms. Wilhelmson to have a biological child. That is clearly compensable. Ms. Wilhelmson got pregnant before the accident and there was no indication whatsoever that she could have carried that child to term. She cannot safely do so now. She is entitled to be put in the same position she was had the accident not happened. Surrogacy fees are the only way to do that. I did not understand the defendant to suggest otherwise. Instead, the defendant focussed on whether a specific award for surrogacy fees was precluded for other reasons.

[368]     The plaintiff submits that there is  legal precedent for covering private clinic costs and U.S. health care expenses, and that the surrogacy fees she is claiming fall under into those categories: Engqvist v. Doyle, 2011 BCSC 1585 and Morgan Estate v. Newfoundland, 2007 NLCA 40.

[369]     In Engqvist, the plaintiff who suffered soft tissue damage from two motor vehicle accidents, made a claim for money to pay for private health care due to the specific treatment she required and the accelerated healing that private care would facilitate. In his decision, Rogers J. states that “[t]he first point to address on this issue is that it does not concern the Canada Health Act. … Instead, the fundamental question is whether a particular treatment modality is reasonably necessary to promote the plaintiff’s mental and physical health…”. Essentially, he considered any public policy concerns about private versus public health care to be irrelevant. The test the plaintiff had to meet was whether the care would be sufficiently necessary and beneficial to her. The judge found it was and damages were awarded.

[370]     In Morgan, a plaintiff who had been injured in a car accident in Canada had since moved to the United States. She sought an award for medical treatment available in the US that was unavailable in Canada. She also sought special damages to reflect the increased cost of health care in the U.S. Cameron J.A. affirms the trial judge’s decision to take judicial notice of the fact that the U.S. has a private health care system and that may increase the plaintiff’s future care costs. The plaintiff was given an increased damages award to reflect that.

[371]     The defendant says that a specific award for surrogacy fees is not available as such an award would be contrary to public policy. To support this argument he points to s. 6 of the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the AHR Act) which makes it illegal to pay a woman to be a surrogate in Canada.

[372]     The defendant also relies on 57134 Manitoba Ltd. v. Palmer, [1989] B.C.W.L.D. 1543 (CA). In that case the Court of Appeal upholds the trial court’s finding that the plaintiff could not be compensated for the loss of a discount due to the fact that the discount was contrary to s. 34 of the Combines Investigation Act. The trial judge stated that “[t]he court will not lend itself to assist the plaintiff in taking advantage of another's illegal act” (at para. 38).

[373]     The facts of Palmer are very different from this case, but the defendant submits that the rationale is applicable. He submits making an award for surrogacy fees would be contrary to the AHR Act, just as making an award based on the discount would be have been contrary to the Combines Investigation Act.

[374]     I do not agree. In Palmer, the court concluded its award would sanction illegal conduct. In this case there is no such danger; Ms. Wilhelmson is not seeking surrogacy fees to pay a surrogate in Canada, which would contravene the AHR Act. Instead, she is seeking fees which would allow her to embark on the lawful activity of compensating an American surrogate. The AHR Act cannot apply outside Canada’s borders. Dr. Yuzpe testified he was aware of Canadians successfully hiring American surrogates with no known legal complications. I have been presented with no evidence or case law which convinces me that this practice contravenes Canadian law in any way.

[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child -- the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.

[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.

[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):

I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned.....I prefer ... to assess quantum for infertility discretely, by reference to the circumstances of each case.

[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.

[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.

This is a significant win for BC injury victims and the effects of the case will be felt across the country. If you have any questions about your BC injury claim, feel free to contact me:

Perminder S. Tung

Partner

Lindsay Kenney LLP

778-289-9513

ptung@lklaw.ca 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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