Abstract:
In 1991, Fahmo Adan, her husband and three children came to Canada from Somalia and settled as refugees. Three months later, Ms. Adan approached Dr. Bernard Davis, an obstetrician and gynaecologist, regarding her fourth pregnancy. Six months later she gave birth to a healthy daughter. Ms. Adan then suffered recurring perineal pain. Dr. Davis eventually performed a tubal ligation resulting in permanent sterilization of Ms. Adan, which cured her of recurring pain. In 1992, Ms. Adan's three year old daughter died as the result of an accident, and soon after this event her husband left her. On a subsequent visit to Dr. Davis concerning recurring menstrual problems, Ms. Adan learnt of her earlier sterilization. Ms. Adan, who could neither read, write, nor speak English, had always been accompanied by an interpreter to her medical appointments. She commenced a negligence action against Dr. Davis on the grounds that he had failed to secure her informed consent to a procedure that lead to her permanent t Professor of Law, Faculty of Law, University of Windsor, and of the Faculty of Law, University of Auckland. A preliminary draft of this paper was first given at the Fourth Remedies Forum, Louis Brandeis Law School, University of Kentucky, (Louisville, Kentucky, November 2005) and at the Obligations Ill conference, T.C. Beime School of Law, University of Queensland (Brisbane, Queensland, July 2006). 1 wish to thank the assistance of Drew Sinclair and Michael Noonan, my research students, both of whom were generously funded by the Law Foundation of Ontario, and the comments of two anonymous referees.