This hard-fought medical negligence claim finally resolved on a confidential basis following the completion of evidence at trial. The case centred on the extraordinary care needs of the Florence Triplets, Taylor, Brody and Cole who each have varying degrees of severe cerebral palsy as a result of being born prematurely at 25 weeks and five days gestation.
As a result of the perseverance of the triplets’ parents, Dana Geall and her then-husband Jared Florence, and the meticulous prosecution of the case at trial, our team was able to settle the Florence family's case. To truly understand the final outcome, we must look back at the journey and reflect on the battles and the lessons learned.
First: Case background
The cause of the prematurity and the resulting extraordinary disabilities was a drug called Serophene, a fertility medication. Dana had been prescribed Serophene by her gynecologist, Dr. Susan Benzaquen, even though she was only 26 years old and had been attempting to conceive for approximately six weeks. Dr. Benzaquen recommended a fertility drug, concluding, based solely on Dana having an irregular cycle and without performing a single test, that she was anovulatory.
On these facts, a claim was brought on behalf of Taylor, Brodie and Cole and on behalf of Dana and Jared against Dr. Benzaquen. It alleged that it was negligent to prescribe Serophene in those circumstances and that this negligence was the cause of the triplets’ injuries such that Dr. Benzaquen should in justice be held responsible for the extraordinary costs that arose from her negligent act.
It sounds simple on its face. Someone just needs to decide whether the giving of that prescription was negligent and that should be that. Right? Apparently not.
Overcoming obstacle after obstacle
The first thing of note is the sheer length of the fight. The Florence Triplets were born on January 1, 2008 by emergency caesarian section. The legal claim was filed on April 11, 2011 and trial finally commenced before Justice DesRosiers on March 31, 2025. The confidential settlement was reached after the evidence was completed on April 25, 2025: fourteen years of hard-fought litigation to get one simple answer.
Early on, we brought a motion to bifurcate the trial. That is, have liability determined and then have a trial later on to assess the damages, if such a trial became necessary. The reasoning behind this approach was that the damages were complex and ongoing since the measure of damages was the ongoing care needs which were happening and changing in real time.
It was too early to properly assess that issue, but we could answer the simple question which would then allow the parties to make responsible decisions on next steps and potentially lead to final resolution of the dispute. In short, it was the most just and expeditious way to deal with the case, which is precisely what our Rules of Civil Procedure state as a guiding principle.
The defence objected and the court dismissed our motion. Obstacle one. Then, after litigating the case through examinations for discovery and a failed mediation and after exchange of voluminous experts reports on all issues, the defence brought a motion to strike the claims of Taylor, Brody and Cole on the basis that Dr. Benzaquen did not owe them a duty of care in law. The motions judge agreed and struck the triplets' claims.
In a 2-1 ruling, the Court of Appeal for Ontario agreed despite a lengthy and well-reasoned dissent by the Associate Chief Justice of Ontario. On behalf of Taylor, Brody and Cole, we sought leave to appeal to the Supreme Court of Canada, but sadly, leave was refused. Obstacle number two.
It is worth pausing there to briefly discuss the implications of the court’s decision to strike the triplets’ direct claims without a trial and thereby terminate their rights to seek compensation for the harm done to them in the absence of any evidence. The court’s logic was that it could potentially create a conflict for the defendant doctor and therefore a doctor could never owe a duty of care to a future child even if their actions foreseeably caused that child egregious harm.
With respect, that logic is tenuous at best. It seems obvious that a manufacturer who creates a toxic product would owe a duty of care to children who were born with disabilities due to exposure to the toxic product, whether the child was born at the date of the negligence or not. So too, an engineer who designs a balcony that fails and injures the occupants. It could never be an appropriate answer to some of their claims that they are young and were born after the engineer negligently designed the balcony, so they are not owed the same duty of care. Is it only doctors who receive this special treatment?
It also cannot be justified by the notion that some possible conflict between the doctor’s duty to mother and her duty to the foreseeably harmed future child should erase that duty at first instance. Imagine a paramedic that comes on an accident scene with two injured people; of course the paramedic owes them both a duty of care, but prioritizing one over the other based on acuity is how the potential conflict is resolved.
We also asked the court to consider the deep societal impact of striking the triplets’ claims since, if they had no right to make a claim then all of those extraordinary care costs that were caused by the defendant doctor’s negligence would be borne by the taxpayer, which hardly seems a just result.
Despite these arguments and the inherent justice of the triplets’ claims, their rights were finally extinguished by the Supreme Court of Canada on March 24, 2022 with these simple words: “Leave refused.”
Reconstituting the claim — and justice at last
Some may have tired of the fight by that stage. We had spent thousands of hours and hundreds of thousands of dollars and the end seemed further away than it had at the start. Through the setbacks and many hours in court, we still had no answer to our simple question. So, on we went.
The claim was bravely continued by Dana and Jared despite all they had been through, or maybe because of everything they had been through. The claim was reconstituted to some extent as a pure economic loss case. That is, Dana and Jared were suing Dr. Benzaquen not for any actual physical or mental injury they suffered, but rather for the economic loss they had and would incur in providing extraordinary care to the triplets.
This seems to be a far more tortured way of getting to the result and one which lacks some important safeguards that would be in place if the triplets had a direct claim, but it is a claim which has been recognized by our courts, albeit rarely. So off we went.
More examinations for discovery, more demands for updated medical records, no matter how tangential, more failed mediations. And then, at long last, a trial date and light at the end of the tunnel.
After objecting to bifurcation and fighting for years about damages, the defence agreed to settle the quantum of damages prior to trial. By the time the trial was due to commence on March 31, everyone finally agreed that the court really needed to answer one question: the question we had posed in April, 2011.
There were many sleepless nights, many hours of doubt and fear, bleak and teary meetings with our clients who were tirelessly committed to doing everything possible for three incredible children who have taken on the world and persevered through struggles almost too difficult to imagine. Dana and Jared never stopped. We never stopped. And we never will.
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Duncan Embury is a Partner and Head of Litigation at Neinstein. He is a seasoned litigator, well-known for his advocacy and ability to dissect complicated medical-legal issues.
Duncan primarily represents patients injured due to medical harm, with a particular focus on birth injury and brain injury cases across Canada. In addition to his dedicated practice in complex medical negligence work, Duncan is frequently asked by other lawyers to take on cases and to conduct trials. He also handles complex, multiparty civil litigation including claims of institutional negligence, product liability, and municipal liability.
Most recently, he played a key role in KB. v Guhle (2025 ABKB), one of the most significant medical malpractice trials in Canadian history, in which the Alberta Court of King's Bench found a physician's failure to meet the standard of care directly led to catastrophic injuries suffered by an 11-month-old patient.
Duncan has appeared before all levels of trial and appellate courts, including the Supreme Court of Canada. His most recent courtroom accomplishments include victories in Doobay v Fu (2020 ONSC 3329), Hasan v Trillium Health (2022 ONSC 3175), and Hemmings (litigation guardian of) v Peng (2022 OJ No 2674), all involving severely brain injured plaintiffs; and a recent appeal win in Farej v Fellows (2022 ONCA 254).
He is a regular speaker and presenter in all areas of medical negligence for the Ontario Trial Lawyers Association, the Ontario Bar Association, and the Law Society of Upper Canada. Duncan has been voted by his peers as a leading expert in his field since 2014 in the Canadian Lexpert Directory® and has been named as one of Canada's Best Lawyers® since 2015. Additionally, Duncan has also been certified as a specialist in civil litigation by the Law Society of Upper Canada.
In addition to his busy practice in the Province of Ontario, Duncan is a member of the Alberta Law Society.